United States Supreme Court Case Requires The Right To Confront Witnesses Even In DUI Cases.

United States Supreme Court Case Requires The Right To Confront Witnesses Even In DUI Cases.

Last month the United States Supreme Court (USSC) took another anticipated step in preserving one of the most fundamental and important rights that an accused person is afforded under the Constitution of The United States.  The recent case issued by the USSC of Bullcoming v. New Mexico followed in the path of Crawford v. Washington, 541 U. S. 36, 59, and  Melendez-Diaz v. Massachusetts, 557 U. S. ___, in clearly defining the right of confrontation, and in so doing, also...


Last month the United States Supreme Court (USSC) took another anticipated step in preserving one of the most fundamental and important rights that an accused person is afforded under the Constitution of The United States.  The recent case issued by the USSC of Bullcoming v. New Mexico followed in the path of Crawford v. Washington, 541 U. S. 36, 59, and  Melendez-Diaz v. Massachusetts, 557 U. S. ___, in clearly defining the right of confrontation, and in so doing, also defining the obligation of the prosecuting authority in every criminal case.  Unlike many cases that are decided by the USSC, Bullcoming was a case of DUI.

The facts of the case are somewhat unimportant, as the “meat” of the case was the fact that the lab analyst who conducted the blood alcohol test that Mr. Bullcoming submitted to was unavailable for trial.  In place of the original analysts, a different analyst testified from the report that the first analyst created as the blood was tested.  While the substitute analyst had knowledge about what should have been done, or what was usually done, he had no knowledge of what was actually done.

In blood test cases, there are scientific and state policy and protocols that must be followed in order for the results to be admitted and shown to a jury.   The inability to determine what was actually done precluded Mr. Bullcoming from confronting the witness.  As described by the USSC:

The analysts who write reports introduced as evidence must be made available for confrontation even if they have “the scientific acumen of Mme. Curie and the veracity of Mother Teresa.” [The substitute analyst was not an] adequate substitute witness simply because he qualified as an expert with respect to the testing machine and the laboratory procedures. Surrogate testimony of the kind [the substitute analyst] was equipped to give could not convey what the actual analyst knew or observed about the events he certified, nor expose any lapses or lies on his part. With the actual analyst on the witness stand, Mr. Bullcoming’s counsel could have asked questions designed to reveal whether incompetence, evasiveness, or dishonesty accounted for his removal from work [and thus his unavailability for trial].  The State did not assert that the substitute analyst had any independent opinion concerning Mr. Bullcoming’s blood alcohol content. More fundamentally, the Confrontation Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another persons testimonial statements provides a fair enough opportunity for cross-examination. Although the purpose of Sixth Amendment rights is to ensure a fair trial, it does not follow that such rights can be disregarded because, on the whole, the trial is fair.

The case is now the highest authority in the land on the issue of confrontation and serves as the new “floor” when it comes to the right to Confront witnesses and what this actually and practically means.  Typically, in Washington State a Federal Constitutional right is given even a higher level of protection under the more protective State Constitution.  While the Washington State Supreme Court has built upon the prior USSC cases involving and preceding this new case of Confrontation, Bullcoming has now, and once again raised the protective bar accordingly.

Bullcoming permits no substitutes when it comes to confronting ALL witnesses against an accused and this is important in every criminal case, but especially so for DUI cases involving blood tests as well as breath test cases.  The importance of the case in a blood case is fairly straight forward:  the testing person must be present for the trial unless they were previously confronted at a pre-trial hearing.

With respect to the breath testing the right to confront under Bullcoming is equally operational but it will likely require an Appellant Court to settle the matter despite the fact that the implications are clear to the defense bar.  In a DUI prosecution with a breath test, there must be a showing that a breath test machine’s external simulator solution is prepared by a toxicologist.  In order to make sure that the solution is certified under lab protocols several other toxicologist must also test the solution.  The State and City DUI prosecutors typically call just one of those who had a hand in only the testing phase and not the actual person who created it.  They argue against Bullcoming by stating that the multiple testing of the solution and the presence at trial of one of these testers who the defense can, in fact, confront is good enough and distinguishable from Bullcoming.

This is because it is a rare case that the person who ACTUALLY created the solution is present at trial.  From the defendant’s Confrontation standpoint,  Bullcoming holds that the creator of the solution is required to be there in order to test that person’s veracity, demeanor, and to some extent competence in their creation of the solution.  While the solution is easy to prepare, it can be prepared in a manner that is NOT consistent with the required lab protocols and the subsequent testers have no personal knowledge as to how it was actually created.  In addition to this, the secondary tests of other analysts would not indicate whether there was any deviation in the preparation.  As a result the actual person who prepared the solution needs to be confronted by the accused.

While Bullcoming is apparent and clear to a defense attorney like myself, the lower Court’s typically do not like to stray beyond the rule of law that is clearly on point and therefore convincing the lower bench of this requirement when it happens will be challenging.  In fact,that is my personal experience recently.  As a result, the objection to the lack of Confrontation and the argument will need to made over and over until someone appeals a final verdict against a defendant and then the Appellant Courts will weight in on the matter.

This was the case in Redmond v. Moore.  While that was not a case in response to a Court of higher authority, the attorney’s made the argument over and over and over and were denied repeatedly, until the denial of the motion and argument was appealed  Only on appeal was the argument agreed to and then endorsed by the higher Apppellant court. In response to that court ruling the lower courts now had clear authority to enforce the issue and argument and the Department of Licensing was ordered to change their ways had to revamp the method in which it proposed to suspend a person’s driving privilege.

This comment and analogy is not an indictment of the lower courts.  In fact their reluctance to step out on a limb and make new law is understood as nobody likes to be actually stray from the established status quo and risk reversal.  However, that is the job, as it is the job of defense attorneys to make the argument, to expose the logical legal flaws, to point out the fact that another similar case came to a opposite conclusion, and to present an age old scenario in a different light.  Progress in the law is made the same way progress is made in society and technology: a new idea on an old issue.

A defense attorney’s role is typically criticized for creating “loopholes,” or generating the flaws in the law when the reality is we are charged with the duty of protecting clients rights, and if the right to Confront is watered down it is up to us to point it out and argue against it tirelessly until someone recognizes that doing things the same old way, because it has always been this way, is no excuse.  As stated by the Court in Bullcoming when quoting another case: “it does not follow that such rights can be disregarded because, on the whole, the trial is fair.”  The right itself needs to be respected, otherwise what worth is it?