Cross-examination of a blood alcohol concentration analyst now requires the state analyst who either observed or conducted the test to testify in trial and be subject to cross-examination.
The United States Constitution contains a Confrontation Clause which generally allows a defendant to cross-examine anyone who testifies in a trial. The Justices in this matter, Bullcoming v. New Mexico (2011), ruled it was improper for the trial court to introduce a forensic laboratory report made for the purpose of proving a blood alcohol concentration level through the testimony of a scientist who (1) did not sign the certification or (2) did not either conduct the test or observe the conducting of the test reported in the certification. This decision has corrected a great unfairness noted as noted by a Santa Rosa DUI lawyer.
Justice Ginsburg explained that no one other than the person who actually conducted or observed the test can convey what the analyst knew or observed about the events which were ultimately certified or which particular test or testing process was used. Allowing someone to testify who did not observe the test or conduct the test prevents a defendant from exposing any lapses or untruths on the part of the person who actually conducted the test.
The Court basically decided that the Sixth Amendment does not allow courts to develop an open-ended exception to the Confrontation Clause. Questioning one witness about another witnesses’ activity does not provide a fair opportunity for cross-examination. Cross-examination must be conducted with the person who actually conducted or observed the test. Previously, a Santa Rosa DUI attorney, a Napa DUI attorney or a Marin DUI attorney did not have the right to require that the test result be introduced only through the analyst who actually conducted the test.
When the district attorney attempts to produce an analyst’s certification, the analyst then becomes a witness that the defendant has a right to cross-examine. The argument that the test report in this matter was non-testimonial was rejected. A police officer provided evidence that was seized from the defendant and forwarded to a state laboratory for a blood alcohol analysis. The Court ruled that the formalities that were a part and parcel of the analysis report were more than adequate to qualify it as testimonial. Thus, the evidence was suppressed or thrown out of court because the defendant was deprived of his/her right of cross-examination.
In short, at the current time in California, if the district attorney wants to introduce into evidence a report from a laboratory regarding a blood alcohol concentration, they must do so through the testimony of an analyst who either conducted the test or observed the conducting of the test so that person can be cross-examined by the defense. No longer can the test be introduced into evidence through the testimony of a supervisor who did not either observe the test or conduct the test.
A Santa Rosa criminal defense attorney, a San Rafael criminal defense attorney, and a Napa criminal defense attorney welcome this decision.
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