DUI Conviction based on Non-Testifying Expert Report

October 28, 2012

How to defend a DUI trial in Los Angeles.

During a DUI trial in Los Angeles, the government must rely on live witnesses.  The government will usually use a police officer and an expert.  If your blood was analyzed by police, they will want to use the result of the blood test to prove that you were above the limit.  In a situation where analyst who measured the level of alcohol in your blood is not available (often the case), you can claim a constitutional violation and earn a dismissal.

Often in DUI (and other cases), the government presents a lab report as evidence of blood alcohol level (or level of drugs or DNA, etc).   When the person who prepares such a report is not testifying – a right to confront witnesses is violated.  Sometimes the court will allow it.  This right comes from the 6th amendment to the US constitution and you have to follow steps to exclude the evidence of a “nontestifying declarant”.

First, when this evidence is introduced, the defendant’s lawyer has to object (if the objection is not raised, it is often waived).

Second, only when the evidence is “testimonial”, it does not come in.  So your lawyer has to argue that the report is testimonial.  Recent case law help prove that.

Third (we don’t’ need to get to it),  but the conviction must be vacated unless the error is harmless.   What determines this is if the evidence contributed to a verdict – the conviction must be reversed.

Recently Califonia’s got a lot better for DUI defense.  In People v. Ogza, a conviction was reversed when the supervisor of the analyst instead of the analyst testified that tested substance was heroin.  But in People v. Lopez the court held that a blood alcohol report was not “formalized” and therefore not testimonial and therefore admissible without violating the 6th amendment.  Older cases like People v. Gier, focus on the formality of the report and distinguish reports that lacking formality not violating the 6th).

In People v. Lopez (San Diego) Virginia 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 without gross negligence, a crime with an exposure of  16 months 2 years or 4 years 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 of alcohol in blood 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’s 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 the accident was caused by the 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).

Her appeal was based 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 (564 US 647), Melendez Diaz v. Massachusetts (557 US 308), and Williams v. Illinois (567 US 50).  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 Supreme court reversed a conviction by holding that a report establishing a blood alcohol level and used for a DUI conviction to be testimonial and thus admitted in violation of the 6th amendment right to confront.  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 “the 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 “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“.  Also, in addition to formality, the report has to pertain to criminal prosecution.

In People v. Ogaz, a signature of the analysis is sufficient to meet formality (even though there is no seal).  The court makes a distinction between initialing and signing.  Second, when the analysis is not machine-generated (but uses subjective interpretation) it is testimonial.  So, Ogaz obligates a signed report when someone opined that alcohol was present to testify at trial

At the end of the day, formality determines admissibility.

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