Yet another decision came down on the right of confrontation. Holding: when a blood alcohol report is not “formalized”, it not testimonial and thus can be admitted. California Supreme Court decision seems to contradict Crawford and its legacy (Melendez-Diaz, Bullcomming) and in line with California reasoning in Geier. They discuss all precedent and distinguish on a “formality” ground. Looks like Bullcomming is dead in California. Here is details.
In People v. Lopez (San Diego) Virgia Lopez, drove while intoxicated and collided with a pick up killing its driver, who was 0.11 percent BAC at the time of the collision. Lopez was charged with PC 191.5(b), vehicular manslaughter while intoxicated, a 16-2-4 crime. She admitted to drinking and the prosecutor introduced evidence of her intoxication by having a colleague of the analyst who analyzed her blood alcohol level testify about her being 0.09 percent two hours after the accident. The 6th amendment right of confrontation was used to appeal her conviction; i.e., the defendant could not confront the actual person who analyzed the blood. At trial, another witness, a toxicologist, testified that retrograde extrapolation puts Lopez’ blood alcohol level at 0.12 percent at the time of driving. A toxicologist further testified that the defendant, who testified, is not to be believed about her drinking pattern, which would put her at 0.04 percent. An accident reconstruction expert testified that accident was caused by defendant’s speeding (68 to 75 mph), intoxication, and inattention. After she was found guilty, the court sentenced her to 2 years in the state prison (a midterm).
The appeal was based mainly on Melendez-Diaz, an extension of Crawford v. Washington, a 2004 case that overturned Ohio v. Roberts. Prior to Crawford, hearsay would be permitted if it was a (1) firmly rooted hearsay exception and it had (2) a particular guarantee of trustworthiness. Crawford permits “testimonial” hearsay only when (1) witness is unavailable and (2) defense had a prior opportunity to cross-examine the witness. The U.S. Supreme Court applied Crawford to several documentary cases holding that those documents are hearsay and subject to Crawford. Those cases are Bullcomming v. New Mexico, Melendez Diaz v. Massachusetts, and Williams v. Illinois. In Melendez-Diaz, a cocaine distribution conviction was reversed because the report of substance testing certifying that the substance taken from the suspect was cocaine, was determined to be testimonial. In Bullcoming the high court deemed a report establishing a blood alcohol level and used for a DUI conviction to be testimonial within the meaning of Crawford. In Williams, a rape investigation report of a vaginal DNA testing was deemed non testimonial because at the time of testing, Williams was not a suspect yet – thus it was not prepared for “primary purpose of accusing a targeted individual” or because the report lacked “formality and solemnity” to be considered testimonial. Williams is a plurality opinion with Thomas adding his own “formality and solemnity” reasoning.
The California Supreme Court in 2007 found that a DNA report from a murder/rape investigation matching DNA of a suspect to a murdered victim’s vaginal swab is not testimonial within the meaning of Crawford (Geier) and thus does not violate 6th amendment.
Using Geier, California Supreme Court decided that the analyst report here would not be testimonial because the report was a “contemporaneous recordation of observable events”. The California Supreme Court notes that “contemporaneous recordation of observable events” can be inadmissible per Melendez-Diaz and Bullcoming. The court concludes that unlike Melendez-Diaz where reports were sworn before a notary or in Bullcoming, where reports had a certificate of an analyst, there was no “formality” here. The court concludes that there is no constitutional violation here and uphold the conviction.