In a recent ruling, the Supreme Court has confirmed that a defendant in a DUI case has the right to cross-examine the Forensic Scientist who performs the lab tests on bodily fluid tests, rather than simply making due with a proxy from the state crime lab.
The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, the accused shall have right to confront his accuser. This means that in all criminal prosecutions, a defendant has the right to cross-examine the witnesses against him. In a DUI case, this typically means the right to question the police officers that arrested the defendant. It has become increasingly common, however, for the police to seek warrants for blood samples or request urine samples from suspected drunk drivers. These urine and blood samples are sent to the Oregon State Department of State Police Forensic Laboratory for analysis. The Forensic Scientist who performs the forensic testing and certifies the result is often not available for cross-examination at trial. Instead, the prosecutor calls another so called "expert" from the state crime lab. Under this arrangement, a Portland criminal defense attorney is left without an opportunity to cross-examine the analyst who actually conducted the test.
The United States Supreme Court addressed this issue in the case of Bullcoming v. New Mexcio. Mr. Bullcoming was charged with driving under the influence of intoxicants. A blood test of defendant resulted in a blood alcohol content of .21 percent. At trial, the prosecution failed to present testimony of the analysis that actually conducted the blood analysis and certified the results. Instead, the State brought in a witness from the crime lab who had not been directly involved in the analysis of the defendant's blood sample. The trial court allowed this witness to testify regarding the blood test results over the objection of defense counsel. The New Mexico Supreme Court agreed with the State and upheld the conviction.
The U.S. Supreme Court reversed the New Mexico Supreme Court in a 5-4 opinion. The Majority Opinion by Ruth Bader Ginsburg can be effectively summed up as follows: "The accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist." Since the State could not prove the analyst was "unavailable" for trial, and Mr. Bullcoming did not have an opportunity to cross-examine the analyst, the Court reversed Mr. Bullcoming's conviction.
This case will help protect rights of confrontation in DUII cases and other criminal cases. At a minimum, defense counsel will now have an opportunity to cross-examine the analyst to determine whether he or she is properly qualified to conduct the forensic testing in question, and whether the analyst performed the testing in accordance with proper scientific methods. If not, the reliability and validity of the test result can be severely compromised, and even thrown out of evidence.
If you have been charged with driving under the influence of intoxicants, contact attorney Donald J. Molnar, a Portland DUI attorney, for a free phone consultation.