Bullcoming v. New Mexico raises a significant issue under the Sixth Amendment Confrontation Clause regarding scientific and blood test evidence in Massachusetts drunk driving cases with breathalyzer or blood test results. The State of New Mexico attempted to present evidence to prove the defendant's blood alcohol content through a surrogate blood analyst who did not have any role in drawing the defendant's blood.
The State argued that the Sixth Amendment Confrontation Clause was not violated because the blood test was a simple test that did not require the analyst to interpret results or exercise independent judgment. The National College of DUI Defense amicus brief, by Attorneys Justice McShane, Lenny Stamm and Ronald Moore, pointed out the scientific judgment and interpretation involved with blood test results.
The State argued in its brief that the Confrontation Clause is not implicated because the report was produced by a machine and a machine is not a witness under the Confrontation Clause. The State argued that the scientific evidence in Bullcoming did not qualify as testimonial because it was not prepared under oath and is not an affidavit or confession. The complete court filings in the case are contained on the Scotus Blog, click here.
After reviewing the transcript of the oral argument, Justice Scalia appeared to agree with the position of the defendant that the defendant's right of confrontation was violated. Further, he pointed out that it appeared that the State attempted to shield the blood analyst from cross examination as he was put on leave without pay.
In an exchange with Justice Alito, the Attorney for Bullcoming, Jeffrey Fisher was asked if the machine produced a reading of .21, would that reading be testimonial. This exchange is essentially the confrontation debate surrounding breathalyzer test results.
Attorney Fisher avoided this issue during his argument because it did not fit the defendant's case. However, he stressed that the issue is whether a result from a machine, has enough human influences that it should be treated as a statement of a person.
Justice Ginsburg questioned the value of cross examination as the lab technician is unlikely to remember the results of the analysis, but will only be able to testify as to usual practices. Attorney Fisher stressed that the analyst would remember if something went wrong and that prior case law stressed that the right of confrontation is satisfied even if the witness does not remember as the jury can evaluate the demeanor of the witness and the competence of the witness.
The State, attempted to rely on the Bryant decision of only two days earlier, to argue that the blood test results were not testimonial under the public record exception. Justice Sotomayor seemed to reject the State argument that the analyst is copying the tests results onto paper generated by a machine. Justice Sotomayor rejected the idea that the analyst was a mere conduit for information and stated that he is certifying that certain steps were taken, that evidence was not tampered with. Applying the primary purpose test set forth in Bryant, she asked whether the primary purpose of the lab report was for prosecution. The State's response, trust the scientist, which the under the reasoning of Melendez-Diaz, the scientific process must be subject to cross examination.
Justice Scalia asked the State whether the same procedure is followed for ballistics analysis. The State argued that ballistics require interpretation of the results. In response to Justice Scalia's hypothetical, asking what if a machine could interpret ballistic results, the State argued that confrontation would not be required because the machine provides the best evidence.
I would expect the United States Supreme Court to find that the defendant's right of confrontation was violated in this case by the lack of live testimony of the blood analyst. Bullcoming presents an interesting case for the court because it could potentially minimize the significance of either the Melendez-Diaz case or the recent Bryant decision. To side for the State the Court would be essentially overruling Melendez-Diaz. However, it would be difficult to reconcile a decision for the defendant with the holding of Bryant. A decision in favor of the defendant would result in Massachusetts criminal lawyers arguing that Bryant was a narrow holding limited to its facts. Applying the primary purpose test to blood and breathalyzer testing machines, the primary purpose of these machine will always be for use in court. Accordingly, the primary purpose analysis would reconcile the three recent Confrontation Clause cases of the United States Supreme Court.
As a Massachusetts DUI lawyer, the Bullcoming decision will have a major impact on how the Massachusetts Supreme Court decides the case of Commonwealth v. Zeininger which is currently pending before the Massachusetts Supreme Judicial Court. Click here to read my prior post on the Zeininger case. The Court will likely issue its decision at the end of its term.
