On June 23, 2011, the United States Supreme Court decided Bullcoming v. New Mexico, a case which shores up our constitutional safeguards and which will have important implications in Massachusetts OUI/DUI/DWI/drunk driving cases.
The facts, which were summarized in a previous blog post, were as follows: In 2005, Donald Bullcoming rear-ended a truck in New Mexico. The driver of the truck noticed that Bullcoming's eyes were blood shot and smelled alcohol on him, and he told his wife to call the police. Bullcoming left before the police arrived but was apprehended shortly thereafter. He failed field sobriety tests and was arrested for a violation of the New Mexico drunk-driving statute. Bullcoming refused to take a breath test, but a sample of his blood was drawn at a hospital pursuant to a warrant obtained by police. The sample was sent to the New Mexico Department of Health for blood alcohol concentration analysis. Such analysis involved operation of gas chromatograph machines and various steps susceptible to human error. The scientist who performed the test and signed the certification reported that Bullcoming had a BAC of .21, and Bullcoming was prosecuted for the more serious crime of aggravated DWI. At a trial by jury, the State introduced the findings as a business record during the testimony of a scientist who did not observe or review the test. Bullcoming appealed to the New Mexico Supreme Court, which, considering Melendez-Diaz, acknowledged that the report was testimonial but concluded that admission of the report was constitutional because (1) the certifying scientist was a "mere scrivener" and (2) the testifying scientist was a qualified analyst capable of serving as a surrogate.
The question presented in Bullcoming, then, was whether the prosecution can constitutionally introduce a lab report, having a testimonial certification and made to prove a fact, through surrogate in-court testimony of a forensic scientist who neither signed the certification nor performed the test. In a 5-4 decision, the Supreme Court reversed the judgment of the New Mexico Supreme Court, holding that the Confrontation Clause does not permit such surrogate testimony. The accused has a right to be confronted with the certifying analyst, unless the analyst is unavailable and the accused has had an opportunity to cross examine that analyst before trial. Justice Ginsburg delivered the opinion of the Court. Justice Scalia joined the opinion in full. Justices Sotomayor and Kagan joined all but Part IV, and Justice Thomas joined all but Part IV and footnote 6.
Justice Kennedy, along with Justice Alito, Justice Breyer, and Chief Justice Roberts dissented. Much of the dissent expressed a continuing gripe concerning the Crawford line of decisions, of which Bullcoming is now a part.