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RECENT DWI NEWS
Confrontation Rights Upheld By United States Supreme Court In DWI
Case
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In a recent United States Supreme Court decision, Bullcoming v.
New Mexico , 131 S.Ct. 2705 (2011), the Court grappled with
the question as to whether the Confrontation Clause of the United
States Constitution allows the prosecutor to introduce a forensic
laboratory report for a blood sample containing a testimonial
certification by using the testimony of a scientist who did not
sign the certification or even observe the test reported in the
certification. |
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In reversing the conviction,
the Court ruled that the accused has a right to be confronted by
the analyst who made the certification in order to give the
accused an opportunity to cross-examine that particular blood or
drug analyst. |
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In its decision, the Court referred to its earlier holding in
Crawford v. Washington, 124 S.Ct.1354 (2004), wherein the Court
ruled that the Confrontation Clause permits the admission of
"testimonial statements of witnesses who are absent from trial
only when that declarant is unavailable and only where the
defendant had a prior opportunity to cross-examine." The Court
also referred to its prior decision in Melendez-Diaz v.
Massachusetts, 129 S.Ct.2527 (2009) wherein the Court declined to
create an evidentiary exception for a lab report. The Court ruled
that a lab report was "testimonial" for Confrontation Clause
purposes and that absent a stipulation, the prosecution may not
introduce such a report without offering a live witness competent
to testify to the truth of the reports statements. 129 S.Ct. 2527.
The fair
import of these cases is to require the prosecutor to produce the
lab analyst who actually tested the blood or urine samples. This
will substantially increase the burden on prosecutors since many
of these samples are routinely shipped out of state for testing
and as a result, these analysts will not be readily available for
testimony.
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This decision is significant also in cases where a
breath sample is taken instead of a blood test or urine test.
In
the past, Police agencies like the Nassau County Police Department
do not produce the mechanic or technical supervisor who actually
calibrated and maintained the breath test machine, or the forensic
scientist that prepared the simulator solution used to test the
machine and during a subjects test, instead relying on the police
officer who administered the breath test or a technical supervisor
who did calibrate, maintain the machine, or actually oversee the
preparation of the simulator solution. Through this witness the
Prosecution introduces sworn statements that were prepared by
mechanic and forensic scientist that allegedly attest to the
proper maintenance of the machine, and the proper preparation of
the simulator solution. |
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By doing so the Prosecution prevents defense counsel from
bringing out the deficiencies in the procedures actually used, and
their shortcomings in terms of producing reliable results to the
Jury. This practice frequently employed by Prosecutors
throughout the state denies the defendant his right to confront
and cross examine necessary witnesses. One would think that the
Prosecution would want to try with live testimony that the machines are
properly maintained and procedures used are correct when trying to
convict a person accused of drunk driving. This is especially
true when invariably the accused could be sentenced to jail, among other harsh
consequences. In those rare instances when the Prosecutor do, the
results have not been desirable.
In fact, in a recent case of
People v. Susan K. tried in Nassau County District Court in 2011
when the prosecutor called the Nassau County Police Officer to the
stand who maintained the Machine; the mechanic, the officer
testified to the limitations of the procedures and indicated that
the current procedures used to maintain these machines, is not
adequate to ensure reliable readings for defendants. Moreover the
Nassau County Police Officer
testified that he was prevented by his superiors from
employing the recognized accepted procedures that would ensure
reliable breath test readings for those accused of Drunk driving.
When the Forensic scientist, Margaret Fisher testified, she went
through the acceptable scientific procedures that are necessary
when one relies on analysis of unknown samples. Her
testimony revealed that the current procedures used for Breath
testing procedures employed by the Nassau County Police Department
in terms of quality assurance, fell short of acceptable practices.
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In that
trial, the defendant was acquitted with a .22 reading after the
jury heard this evidence. In a subsequent trial, neither the
same mechanic was called to testify, nor was Margaret Fischer
called, even though defense counsel in opening statement told the
jury what the previous testimony had been in the previous case,
and challenged the Prosecutor to produce the witnesses. The
Prosecutors in that case refused to call these necessary
witnesses, instead, relying on documents that were filled out by
these individuals as related by the breath tech/technical
supervisor on the case, who neither repaired nor maintained the
machines. Ironically, this witness testified to matters that
actually had contracted the mechanics previous testimony less than
two months prior. This prevented defense counsel from bringing out
the truth as to the deficient procedures employed by the Nassau
County Police Department, as the witness who was called, refused
to concede any deficiency in the procedures which had previously
been admitted to by the actual individuals who conducted the
aforementioned test under oath less than 2 months earlier!!!!
It appears that United States Supreme Court
decision, Bullcoming v. New Mexico , 131 S.Ct. 2705 (2011), will
end this practice which prevents the Jury from hearing the
witnesses that actually performed the work claimed to have been
done and prevent the Prosecutors from convicting People accused of
crimes by introducing documents prepared by others that can not be
cross examine.
An experienced DWI defense attorney, like Robert J.
Brunetti who familiar with the case, will undoubtedly use this
case to the to the best benefit of their clients.
For More Information And To Schedule a Free Consultation Call
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