Blood Alcohol Level Evidence & the Confrontation Clause in New Mexico and Beyond

One of the most common grounds for dismissal of criminal cases is violation of the 6th Amendment allows for confrontation of witnesses in criminal trial. The Sixth Amendment has been used in several situations to exclude testimonial evidence and is closely guarded by U.S. courts. A recent example of this is the U.S. Supreme Court case of Bullcoming v. New Mexico.

In Bullcoming v. New Mexico the defendant was charged with DWI. The prosecution‘s main evidence consisted of a forensic laboratory report that certified that the Defendant‘s blood alcohol level was above the threshold for aggravated DWI in New Mexico. The Defendant‘s blood sample was tested in the New Mexico Department of Health‘s Scientific Laboratory Division (SLD).

However, the forensic analyst who completed, certified, and signed the report had by the time of the Defendant‘s trial been placed on unpaid leave, and was not called as a witness by the prosecution. The prosecution did not state that the analyst was unavailable but instead called another analyst employed at SLD to validate the report. The second analyst was familiar with the testing procedures but had not participated in the testing of the Defendant‘s blood.

At trial, the second analyst was allowed to testify over the Defendant‘s objection and the blood alcohol report was entered into evidence. The Defendant was convicted and appealed, arguing that his rights under the Confrontation Clause of the Sixth Amendment had been violated. The Supreme Court agreed with him and reversed the conviction.

The Confrontation Clause of the U.S. Constitution guarantees the right of a criminal defendant to confront witnesses. Under the Sixth Amendment, testimonial evidence is inadmissible in court against a defendant unless the witness is present and the defendant has an opportunity to cross-examine the witness on their testimony.

Statements made by a witness outside of court are not admissible unless the witness is unavailable and the defendant had a previous opportunity to cross-examine that witness on their testimony. Out of court testimony includes not only witness statements, but also autopsy reports, forensic analysis results, etc. In accordance with the Confrontation Clause, the person who created the report or was present to observe when the report was being made must in most cases be present in court for the report to be admissible.

In Bullcoming v. New Mexico, the U.S. Supreme Court held that it is a violation of the Confrontation Clause to introduce a forensic lab report in order to prove a fact at trial through the testimony of an analyst who did not personally perform or observe the test or who did not sign the certification of the test. According to the Supreme Court, it is the right of the Defendant to confront the particular analyst who certified the report.

While this may at first seem at odds with New Mexico v. Gonzales later decided by the New Mexico Court of Appeals, the two cases are consistent. In Gonzales, the Court stated that the prosecution could not call an expert witness simply to parrot the findings of an autopsy report in place of the analyst who originally created the report. However, an independent analyst could use otherwise inadmissible report to come up with his or her own conclusions and opinions if the evidence was routinely used by analysts in the field.

The difference between the two cases is that in Bullcoming the second analyst was simply validating a report created by someone else while in Gonzales the expert witness would use the autopsy report created by another to draw her own independent conclusions. While this may seem like splitting hairs, it could make a serious difference in a criminal trial.

The outcome of criminal cases often turns on the admission or exclusion of evidence. It is important discuss these matters with an experienced criminal law attorney.

DISCLAIMER

Related Reading:
Factors Leading to a Charge of Aggravated DWI in New Mexico
Confrontation And Victim Identifications
Prosecution Medical Experts and the Confrontation Clause in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys