This proposed ordinance seems to be a hot potato game of pass the liability. Thus, valet attendants, who interact with patrons for a matter of seconds and who are untrained in detecting drunkenness, might be more inclined to notify police of "suspected" drunk-drivers. Could information relative to what is typically a 3-5 second interaction (according to a Globe source) be enough to provide a reasonable suspicion for police to stop a driver?

The next issue involves the distinction between drinking and operating under the influence. It is not a crime to have a drink and drive. It is presumptively a crime to drive while having a BAC of .08 or more. It is a crime to operate a motor vehicle under the influence of alcohol. The proposed ordinance blurs that distinction and would effectively deprive anyone who has had a drink, regardless of BAC, of having the keys to their own car.

All of this may lead to the issue of paternalism v. personal autonomy in the context of drinking and driving. Certainly, drunk-driving is a problem in society. However, can one not make an un-coerced decision not to drive after having a drink? Does one need a valet attendant, an acquaintance of 3-5 seconds, to tell one that driving isn't an option? To what extent is it proper to use the instruments of law to force one into doing that which is "right" or "wise"?

In response to the last question above, our criminal law in Massachusetts is already designed to deter drinking and driving by imposing very severe, broad-brush penalties. If we need valet attendants to help enforce it, then perhaps those strict "deterrent" aspects are not working.

The justices, in a prepared statement, said, "Public confidence in the judiciary depends on its belief in the integrity of the judicial process, judges, and their decisions...To preserve the public's trust and confidence, the courts must be, and must appear to be, fair and impartial in all cases,'' according to the Globe.

While this Massachusetts OUI/DUI/drunk-driving attorney fully respects the decisions of our Commonwealth's highest court, the question that arises is: How can one have confidence in the integrity of our judicial process when an apparently politically-driven and editorialized newspaper article can potentially create an impact on the judiciary, which is supposed to be isolated from political influence and public opinion? As a Massachusetts district court judge has noted, according to the Globe, the low conviction rate in Massachusetts is due to the fact that prosecutors, sensitive to public opinion in our Commonwealth, are reluctant to dismiss OUI cases that lack evidence. While some have called for a judicial conduct board investigation, it seems that the high OUI acquittal rates in Massachusetts bench trials may well be attributable to the integrity of our judges, who are not susceptible to public prejudice or political pressures.

Cinquegrana has been asked to compare the rate of acquittals in Massachusetts jury-waived OUI trials to the United States average, according to the Globe. This is another troubling piece of information. Our Massachusetts judges should, and must, be free to make impartial decisions, case by case, without national statistics hanging over their heads. National averages have little to do with Massachusetts OUI cases, and nationwide acquittal statistics are meaningless without inquiry into police presence and tendencies, population, prosecutorial discretion, and many other factors. Here is something else to consider. OUI laws vary from state to state. Some jurisdictions mandate the taking of a breathalyzer test. Others permit the police to get a Search Warrant to take blood from an OUI suspect. In these states you might find criminal defense lawyers strongly advising their clients, those who want a trial, to go jury waived should they desire an exercise of their constitutional right to a trial. Why? Because some judges punish more severely when defendants "waste" judicial resources by electing a jury trial for cases that are strong for the prosecution. A state by state comparison of acquittal rates is meaningless absent an understanding of the differences in drunk driving laws from state to state.

The SJC has recognized the "delicate nature of this preliminary inquiry," noting that "[o]ur system depends on judges being able to decide a case fairly but independently, without fear or favor," according to the Globe. Time will tell whether the Massachusetts judiciary will yield to media bullying out of fear or hope for public favor. In the meantime, it is increasingly important to speak with an experienced Massachusetts OUI lawyer if you find yourself accused of drunk driving in our state. Our office has that expertise.

A major problem created by this interstate inconsistency relates to finality of pleas. All states are interested in the finality of pleas and other dispositions. When Massachusetts converts out-of-state first offenses into Massachusetts second or subsequent offenses, the out-of-state pleas may be challenged for lack of voluntariness or intelligence. Before any accused can enter a guilty plea, he or she must have notice of the nature of the charge. When an OUI is charged as a first offense in another state and the accused pleads, the plea may not be made intelligently when he or she has no notice that it will be a Massachusetts second offense. Massachusetts should apply its laws in a way that is mindful of other states' interests in finality of pleas instead of creating potential grounds for vacating foreign pleas.

The question becomes, "Why should Massachusetts defer to another state in terms of an OUI offender's status and the nature of an OUI charge?" One answer involves comity, respect for the sovereignty of other states. Another involves certainty, predictability, and uniformity. It is more than important for people to have some degree of certainty as to their offender status. Treating out-of-state first-time offenders as Massachusetts second-time offenders undermines that certainty. One's offender status becomes fluid, changing as state lines are crossed. While Massachusetts has valid public policy interests, the intended deterrent effect of enhanced penalties (and so-called "remedial" measures) for repeat offenders is substantially undercut when a person does not even know that he is or could be charged as a repeat offender.

It is true that under traditional approaches to conflict of laws, it is essentially the rule that State A will not enforce the penal laws of State B. This is a fairly- accepted proposition because the wrong is to the particular state. However, not all provisions of Melanie's Law affecting repeat offenders are considered "penal." As noted above, the requirement that second and subsequent offenders install an interlock ignition device on cars they own or operate has been deemed "remedial" as opposed to punitive. Also, under more modern approaches in conflict of laws, courts engage in "interest analysis" or "comparative impairment" analysis instead of having clear-cut choice of law rules. "Interest analysis" involves considering which state is more interested in seeing its rule applied. "Comparative impairment" is essentially the flip side to that coin, where courts consider which state would be more aggrieved if its rule were not applied. In light of the conflicting interests noted above, and from the perspective of a Massachusetts OUI/DUI/DWI lawyer, it would be interesting to see how a Massachusetts court would conduct an analysis on this issue.

The article first references the "special legal advantage" of "the prohibition on putting a driver's refusal to take a breath-test into evidence." While the phrase "special legal advantage" implies some sort of legal windfall, the highest court in Massachusetts has concluded that refusal evidence violates the privilege against self incrimination guaranteed by article 12 of the Massachusetts Declaration of Rights, our state constitution. The Globe article calls this constitutional safeguard a "devastating advantage for the defense."

The article next states that "Massachusetts, like other states, also enforces intricate procedures police must follow in making OUI stops, procedures that some officers complete imperfectly, sometimes carelessly, opening easy lines of attack for aggressive counsel...It is, in short, a lopsided competition... " Firstly, such "lines of attack" are seldom "easy" in drunk-driving cases, even for the most experienced and skilled OUI attorneys. Secondly, those "intricate procedures" that police are required to follow before seizing a person are dictated by the Fourth Amendment to the United States Constitution as well as Article 14 of the Massachusetts Declaration of Rights. It is unclear to this reader whether the author of this piece would encourage flouting those constitutional requirements in OUI cases to even the so-called "lopsided competition."
Perhaps the most troubling portion of the article states, "Call it OUI, Inc., the cottage industry of lawyers and expert witnesses whose livelihoods are built on getting drivers charged with operating under the influence of alcohol off the hook---and back on the road." It should first be noted that, contrary to the implication here, not all those "drivers charged" with operating under the influence are guilty of operating under the influence and getting "off the hook." As is well known, defendants enjoy, at least nominally, the presumption of innocence (though the above-referenced statement is a testament to the unfortunate and common presumption of guilt). Secondly, it is a defense attorney's duty to zealously work to get their client "off the hook," regardless of whether they are guilty or not guilty. This type of thinly-veiled, if not blatant, disapproval of OUI defense lawyers is seemingly inappropriate.

For almost 30 years, happy hours have been banned in Massachusetts, but the casino bill may signal their return. The Senate recently passed an amendment, called the "Restaurant Equality Amendment," that would even the playing field between Massachusetts bars and restaurants and casinos that come to Massachusetts. The casino measures would allow casinos to serve free drinks, raising concerns among some legislators that smaller businesses would suffer. This has sparked a debate centering on the potential drunk-driving implications, particularly because the purpose of the 1984 ban on drink specials was to reduce drinking and driving.

Senator Robert Hedlund, a Weymouth Republican, has said that the amendment would simply allow restaurants and bars to compete with the casinos, according to CBS Boston. Senator Susan Fargo, a Lincoln Democrat who opposes the amendment, thinks that there would be a sharp increase in drunk-driving injuries and fatalities if the existing happy hour restrictions are lifted, according to that source. Massachusetts Mothers Against Drunk Driving spokesman David P. DeIuliis told the Worcester Telegram and Gazette that MADD has not yet taken a formal position but that the organization is continuing to monitor the casino legislation.

In 2005, the U.S. Department of Transportation's National Highway Traffic Safety Administration published a research report analyzing happy hour/drink special laws. According to that report, research has indicated that drunk- driving rates are sensitive to drink prices, particularly among underage people. However, from that research it would seem that if the problem group is underage drinkers, then the problem could possibly be attributed to lack of enforcement of laws limiting underage access to alcohol. The report also addresses enforcement of "sales to intoxicated" and "happy hour" statutes, referencing the strategy used in Massachusetts involving identification of the place of last drink in OUI cases.

Regardless of the conflicting positions in this happy hour debate, it draws renewed attention to drinking and driving in Massachusetts, which may prompt more zealous enforcement of OUI laws. Certain police departments have already voiced their opposition to lifting the ban. For example, a representative of the Lowell Police Department told the Lowell Sun, "We're trying to control increases in alcohol consumption, not promote the consumption of alcohol...That's exactly what these happy hours do." While that police officer's concern was with consumption of alcohol, as opposed to driving under the influence of alcohol, MADD has distinguished those two behaviors. "We're concerned, but we're not an anti-alcohol organization," a MADD spokesman told the Worcester Telegram and Gazette.

Read related articles:

Massachusetts OUI Defense Lawyer

Suburban Massachusetts Criminal Attorney

Massachusetts DUI Defense Law Firm

Certain theories of alcoholism and problem drinking focus on stress levels and socio-environmental factors. Under such theories, drinking problems develop as mechanisms for coping with stressful circumstances, such as unemployment and financial strain. Researchers have had difficulty, however, in determining the causal relationship between unemployment and alcohol abuse. In other words, it seems to be unclear whether unemployment leads to alcohol abuse or whether alcohol abuse leads to unemployment. If the former is more accurate and unemployment creates an increase in problem drinking, then we would expect to see more Massachusetts OUI arrests and prosecutions if we are to be thrown into another financial crisis.

Massachusetts drunk-driving arrests have decreased in the past five years, the Boston Herald reported on July 20, 2011. However, that article indicated that last year there were 14,834 OUI arrests, down from 17,804 OUI arrests in 2008 and 15,850 in 2006. This is worth noting because 2008 was the height of the economic recession, and according to these statistics, it was also a high point in OUI arrests. Obviously, on the other hand, that there were more arrests does not necessarily mean that there was more drunk driving in 2008. For instance, it could mean that there were simply more police patrols for drunk driving.

As mentioned above, it is possible that unemployment may be a cause of "problem drinking." This raises another important OUI issue. It is known that a large majority of repeat OUI offenders are "problem drinkers." Here in Massachusetts, repeat OUI/DUI/DWI/drunk driving offenders are subject to mandatory minimum sentences, and judges are forced to take a broad-brush approach without consideration of the defendant's situation or individual traits. Anyone facing a mandatory minimum sentence should be aware that the quality of one's defense attorney will be critical.

While the link between financial crises and OUI arrests and prosecutions may be tenuous, it is always important to consider the effects of the current economic, social and political backdrop. This is largely because developments in all areas of the law, including OUI/DUI/DWI law, do not happen in a vacuum and because courts, police, prosecutors, and lawmakers all tend to take the temperature of the day.

"Melanie's Law" was named after Melanie Powell, a 13-year-old who, while walking to a beach in Marshfield, was killed by a drunk driver. The driver, who had a prior OUI conviction, was convicted of motor vehicle homicide and drunk driving. She was sentenced to 2 ½ years in state prison and two years of post-release probation. Melanie's parents and grandfather then started a push for tougher drunk driving legislation. "Melanie's Law," which came in the wake of public anger , was the result.

Laws fueled by public outcry and named after deceased children tend to be counterproductive and poorly-reasoned. Too often, consideration of the policy behind such laws is lacking at best. These kinds of laws are frequently designed to appease an outraged public , and bad knee-jerk laws are passed in an emotional haze. Still, some legislators use these "tough" laws as a tool to garner support and win votes. Attaching the name of a child victim to proposed legislation is another powerful tool for legislators championing such laws. This tactic creates the perception that a vote against the law is a vote against the child, curbing opposition.

There are several examples of laws named after young victims, particularly in the area of sex crimes. The Jacob Wetterling Act, the Adam Walsh Act, and Dru's Law are just a few of the many. While most would agree that prevention of sex crimes is an important goal, many have criticized these laws because they do not do much in terms of achieving that purpose. Perhaps the most common criticism is that blanket sex offender registries make it difficult to differentiate between dangerous convicted criminals and those convicted of sex crimes in relatively inoffensive circumstances, such as a teenager who had consensual sex with his barely underage teenager girlfriend. One can draw parallels between this type of indiscriminate grouping and the way in which Melanie's Law strips the courts of discretion in certain cases and closes out consideration of the unique qualities of OUI defendants.

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.

There are three main theories of criminal punishment: deterrence, retribution, and rehabilitation. This blog post addresses deterrence and retribution in terms of increasingly severe drunk driving penalties. While rehabilitation would perhaps be the most effective approach to drunk driving, particularly when offenders have problems with alcohol, current laws leave little opportunity for rehabilitation analysis, especially with respect to penalties for second and subsequent offenses.

Deterrence theory can be broken down into two parts: general deterrence and individual deterrence. The reasoning behind general deterrence is as follows: if people know that punishment will follow the commission of a given crime, then people will be less likely to commit that crime. In other words, general deterrence serves to provide self-interested persons with reasons to not commit crimes. Individual deterrence is the idea that once a person is punished for a crime, he or she will be less likely to offend again for fear of being punished again. With regard to general deterrence, increasing drunk driving penalties , standing alone, is of little value because it is known that the perceived risk of detection and arrest is of much more consequence than severity of punishment. Considering individual deterrence, the problem with simply imposing harsher penalties is that the majority of OUI/DUI-related fatalities and injuries are caused by problem drinkers struggling with alcohol addiction, and it is more than difficult to deter those with such problems. Moreover, this theory hinges on the concept of the rational thinker, but those who are truly drunk are presumably not thinking entirely rationally. Statistics do show that no matter how severe the potential punishments, drunk driving continues.

Retribution is currently the leading justification for criminal punishment, and it has been on the rise since the 1970s. The idea behind retributivism is essentially "an eye for an eye." While there are different camps within retributivism (negative, positive, assaultive), this is a somewhat simple approach to punishment, with the basic premise being that society is justified in punishing criminal offenders because the offenders have earned it. In the context of strict drunk driving statutes, this theory does not work because there is no black and white. Anyone with a blood alcohol concentration of .08% or higher is treated as a drunk driver, and while that is convenient, not every person is the "average person" in terms of physiology. Drunk -driving laws leave room for punishing those who were not drunk, and sometimes, for punishing those who were not even really driving. Thus, a theory based entirely on moral culpability falls apart.

Read Articles:

http://www.boston.com/news/local/massachusetts/articles/2011/06/14/woman_pleads_not_guilty_in_fatal_andover_crash/

http://www.eagletribune.com/local/x1814654783/Lawrence-woman-held-on-50K-after-double-fatal-crash

Massachusetts Motor Vehicle Homicide Defense Lawyer

Any Massachusetts Criminal Defense Lawyer will tell you there is no up side to taking a Breathalyzer Test, and in most instances the same sentiment applies to Field Sobriety Tests. Fernandez's problems defending this case will no doubt be compounded by the negative results generated by these tests. Jurors rarely acquit where high readings are involved. Eyewitness testimony about the rate of speed at which she was traveling was sufficiently damaging to her defense particularly in a case where death resulted. An accident reconstruction will likely be performed by the state police, possibly supporting the eyewitness' observations. Driving ninety miles per hour with the death of innocent people resulting, will, in and of itself trigger a criminal prosecution. A suspicion of alcohol ingestion or intoxication magnifies the problem. However, failed tests validate the subjective findings of the police and make defending this case extremely difficult. It is important to remember that in Massachusetts the prosecutor cannot mention to a jury that a defendant refused to take a breathalyzer test. Nor can the district attorney comment on a failure to attempt to perform field sobriety tests. What they can do is take the results of these tests, if taken, and use them to support their prosecution. It is much easier to defend someone who has not taken these tests.

In order to be convicted of operating under the influence, the government is required to prove that a defendant was operating on a public way, in a place where the public has a right of access, or in a place where members of the public have access as licensees or invitees. In Virgilio, the Appeals Court explained that in determining whether a private way is covered by the statute, the way's physical characteristics and circumstances are to be assessed. The court is to determine whether members of the public would reasonably think that the way is open to invitees or licensees. The objective appearance of the way, and not the intent of the owner of the property, is controlling. Things like curbs and street lights are some characteristics that may indicate that a way is accessible to the public. However, the court acknowledged that these characteristics are not dispositive because public roads in rural areas often lack them.

The court decided that the private driveway in Virgilio was not a way or a place to which the public had access as licensees or invitees, even though it was not gated, because it only served two residential buildings and did not lead to any public businesses. To conclude otherwise, the court noted, would be to render the word "public" superfluous and depart from the legislative intent of the statute.

The dissent was of the opinion that the driveway did fall within the meaning of the statute, focusing the analysis on the probable and foreseeable "aggregation of persons." The dissenting judge noted that a drunk driver could be expected to encounter both residents and visitors in the driveway, given its common character.

Read Full Text Of Opinion:

Commonwealth v. Virgilio

Schumer questioned the companies' executives at the inaugural hearing of the Privacy and Technology Subcommittee of the Senate Judiciary as to whether the apps facilitate illegal activity, thereby violating terms of service. The apps "endanger public safety by allowing drunk drivers to avoid police checkpoints," Schumer said, according to PCWorld blog. "Apple and Google shouldn't be in the business of selling apps that help drunk drivers evade the police, and they shouldn't be selling apps that they themselves admit are 'terrible,'" he said, according to a press release from schumer.senate.gov. Schumer used "Buzzed" and "Fuzz Alert" as examples of apps that should be removed from application stores. Executives from the companies will report to Congress within a month as to whether the apps violate the terms of service.

Research In Motion (RIM), Blackberry's application maker, has removed the apps in response to a March letter from Schumer and Senators Harry Reid (D-NV), Frank Lautenberg (D-NJ), and Tom Udall (D-NM).

"If people are going to use those (apps), what other purpose are they going to use them for except to drink and drive?" one police officer said, according to a press release from schumer.senate.gov. In fact, however, these apps offer various services that may prevent drunk driving. For example, "Buzzed" offers a feature that allows users to call cabs based on users' GPS locations. Another such app, Trapster, provides drunk driving "Frequently Asked Questions" that warn users against driving under the influence.

The wisdom of the policy behind this movement is questionable at best. Many, including many of those in law enforcement, believe that awareness of police presence deters drunk driving. Without that awareness, some may actually be more inclined to drink and drive. In line with this reasoning, many police departments across the country announce the locations of DUI checkpoints or announce checkpoint plans without disclosing the location. Additionally, it is doubtful that removing these apps will prevent information regarding DUI checkpoints from getting out to the public, given the fact that concerned persons can always check the Internet.

Obviously then, it is not unusual for these reports to contain false information and exaggerations. Because of this, booking videos and in-car cruiser camera videos can be an invaluable source of exculpatory evidence.

Booking and cruiser videos can be extremely useful for a variety of reasons. They can reveal that you were not as drunk as the police said you were or otherwise undercut the officer's version of the facts. They can expose flaws in your arrest experience and the administration of field sobriety tests and breathalyzers.

During the booking process, the booking officer asks a series of background questions. The suspect will be fingerprinted, and a photograph will be taken. As such, booking videos often reveal a respectful and perhaps frightened and confused person with whom a jury could readily sympathize.

As many Massachusetts police departments are now using video cameras and taping these events, it is critical for an attorney to determine whether video evidence is available and carefully review all video evidence. Under the Massachusetts Rules of Criminal Procedure, exculpatory videos must be automatically produced. Some prosecutors, however, may not realize their duty to produce booking tapes, so it is important to have an attorney who will ensure that these videos are preserved and produced.

The statute places the main responsibility in the hands of the suspect, and the police need not assist anyone in the exercise of this right. The police only have to provide a "reasonable opportunity," which generally just means that they must inform suspects of this right and make a telephone available. Police have to do very little to adequately notify suspects, and sometimes they will just give a suspect an opportunity to read the statute.

This law has two purposes: (1) to provide arrested persons with the opportunity to seek potential exculpatory evidence; and (2) to prevent improper police conduct. Typically, if the police fail to inform a suspect of his/her statutory right to a physical examination, the remedy is dismissal of the complaint or suppression of evidence. However, the statute does not make the remedy explicit, and there are some very troubling loopholes that arise from the prophylactic purpose of the statute. The Appeals Court has determined that even where police fail to inform a defendant of his/her right to a physical, no sanction is required where police did not "attempt" or "desire" to undermine the purpose behind §5A. The Supreme Judicial Court has held that the remedy must only be "adequate" to cure potential or real prejudice resulting from a violation of §5A, considering whether the suspect was so drunk that compliance with the law would have been futile. Therefore, there might be no remedy for a violation of your rights where, for example, the police are otherwise occupied or even careless. A violation of your rights might be justified where someone else simply determines that it wouldn't be worthwhile to comply with the law.

The text of M.G.L. c. 263 §5A is available at:

http://www.malegislature.gov/laws/generallaws/partiv/titlei/chapter263/section5a

Before delving into the legal issues, it is helpful to recall the facts of this case. Donald Bullcoming, a New Mexico man, was sentenced to two years in prison for an aggravated DWI, (OUI in Massachusetts). After Bullcoming refused a breath alcohol test, a search warrant issued and a blood alcohol test was performed. As the analyst who performed the blood draw was on unpaid leave at the time of trial, the prosecution introduced the blood alcohol test through a lab supervisor who had not observed or administered the test. The trial court ruled that the forensic report was a business record. The New Mexico Court of Appeals upheld that ruling and determined that there was no Confrontation Clause issue because the report was non-testimonial. As the case was pending discretionary review from the New Mexico Supreme Court, the United States Supreme Court issued its Melendez-Diaz v. Massachusetts decision. Melendez-Diaz clarified that certificates of drug analysis are testimonial and that the prosecution may not introduce them through ex parte out-of-court affidavits without violating a defendant's Sixth Amendment confrontation rights. The New Mexico Supreme Court, applying Melendez-Diaz, held that the blood alcohol test report was testimonial but that there was no Confrontation Clause violation because "the analyst who prepared the report was a mere scrivener who simply transcribed the results..."

In his brief, Bullcoming essentially argues that: 1.) the blood alcohol test is testimonial because, like the certificates in Melendez-Diaz, law enforcement provided seized evidence to the lab to assist in the investigation, a certificate reported a certain chemical composition, and the results were presented in a formal report that was approved for use as evidence in criminal trials; and 2.) the testimony of the particular analyst who prepared the report was necessary to satisfy the requirements of the Confrontation Clause.

The State's position is that: 1.) the report is not testimonial because the information contained therein is machine-produced data, and machines are not witnesses for Sixth Amendment purposes; 2.) the report is distinguishable from the certificates in Melendez-Diaz as it is more akin to "non-adversarial public records...such as birth certificates or judgments of conviction;" 3.) if the analysis was testimonial, the requirements of the Confrontation Clause were satisfied by Bullcoming's opportunity to confront the data and cross-examine a witness who had knowledge of the lab procedure; and 4.) any error in admission of the blood analysis was harmless.

At oral argument, much of the questioning centered on practical considerations and the possible consequences of ruling in favor of Bullcoming. From reading the transcript, it was relatively apparent that Justice Scalia agreed with Bullcoming's position, and in a good deal of his questioning he sought to shore up the argument of Jeffrey Fisher, the attorney for Bullcoming. Scalia asked Gary King, New Mexico Attorney General, if a lab technician prepares these reports "just for fun, not for use in trial?" Scalia also suggested that the prosecution intentionally arranged for the analyst to be on unpaid leave so that he would not have to testify and would not have to be cross-examined, noting "I don't know what the facts are, but boy, it smells bad to me...the possibility of skullduggery, even in machine--machine situations such as this, is a good reason for saying this is testimonial."

To read the oral argument transcript, click here:

http://www.supremecourt.gov/oral_arguments/argument_transcripts/09-10876.pdf