?????Later today, when the U.S. Supreme Court’s?justices meet in?conference, they will discuss whether?to?hear an appeal from a New Hampshire?state court DWI conviction.??The question presented is whether?blood alcohol concentration test results may be admitted in a DWI case without presenting testimony from the laboratory personnel who?(a) drew the driver’s blood and (b) analyzed the blood.??
???? The Derry District Court and the New Hampshire Supreme?Court (over a vigorous dissent) held that?the test results could be admitted.? The driver–a 17 year old who was convicted of DWI, First Offense–appealed the issue to the U.S. Supreme Court.? The National College For DUI Defense?has filed an amicus brief urging the Supreme Court to accept the case.??
??? The chances that the Court will decide to hear this case–State v. O’Maley (N.H. Supreme Court decision here), docketed as O’Maley v. New Hampshire (U.S. Supreme Court docket sheet here)–are slim:? The?U.S. Supreme Court?receives somewhere around 8,000?petitions for review?each year.??It?accepts just a small fraction of these cases, writing?less than 80 opinions (statistics for?the 2006 term available at this??link at Scotus Blog), and summarily vacating and remanding others with identical issues.? Most of the? that the Court accepts come from the federal courts of appeal and only a handful are direct appeals from state Supreme Courts.
???? Yet the New Hampshire?DWI case that the justices will discuss today, however briefly, has some chance of being accepted for review, even if that chance is quite small.? The case raises an important and unresolved issue concerning the Federal Constitution’s Sixth Amendment right of “confrontation.“? The right of “confrontation” is the right that every criminal defendant has to face, confront and cross-examiner his or her accusers at trial.?
?? Professor Richard Friedman, whose writings on the confrontation clause have animated the U.S. Supreme Court’s recent decisions, finds the O’Maley case to be “cert. worthy.”? (Cases generally reach the U.S. Supreme Court by means of “petitions for certiorari” or, in common parlance, “cert. petitions.”? Thus among the lawyers who study such things, a case that is “cert. worthy” is one that presents issues which the U.S. Supreme Court might find worthy of review).? You can read Friedman’s discussion of the?O’Maley case?on his blog, The Confrontation Blog. ???
???? The case itself arose from relatively routine facts.? A seventeen year old driver crashed into a phone pole.? He vehicle was damaged and he walked home with a possible?head injury.? The police found him at his house a short time later.??Because he admitted to drinking and driving, and because he had an odor of alcohol about him, they arrested him for DWI.? The police then brought the driver to the hospital for treatment where they read him his “implied consent” rights (see, N.H. RSA 2365-A:4) and took a blood test.???
???? Three separate individuals then became involved in the case:
???? A.? A technician took a blood sample at the hospital, and filled out a form noting that he or she complied with all of the applicable regulations for State blood draws in DWI cases (see,? N.H. Code of Adminstrative Rules and Regulations, Saf-C 6402.2).
???? B.? An analyst tested the sample at the State Police Forensics Laboratory, noting that he or she complied with the regulations for testing such samples in DWI cases (see, Saf-C 6402.6 above).?
??? C.? The laboratory’s assistant director reviewed the test results and calculated the alcohol concentration to be 0.14.
?? Only one of these three individuals–the?lab director–testified at the driver’s trial.? Neither the technician who drew the blood nor the analyst who tested the sample testified.? The driver argued, among other things that the Sixth Amendment’s confrontation clause required exclusion of the lab test unless both the technician and the analyst testified.
??? The Sixth Amendment question turns on whether the technician’s and analyst’s statements (on the government forms and certificates they signed) were “testimonial” as that term is used for Sixth Amendment purposes.? In 2004, in the case of Crawford v. Washington,?the U.S. Supreme Court held that? out of court “testimonial” statements are not admissible in a criminal case unless the defendant is given the opportunity to cross-examine the person who made such statements.? The Court did not, however, provide a detailed and workable definition of “testimonial.”? Instead, it referred to the historical circumstances which led to the inclusion of the confrontation clause in our Constitution.? Since those circumstances did not include the routine use of criminal forensics laboratories, there are good grounds for disagreement about how Crawford should be applied in the present context.
??? The young driver in this case has a pretty good argument:? The witnesses involved in State blood draws and tests make statements on the certificates and forms they fill out for just one purpose–to be used as evidence in court against the defendant in a criminal case.? What grounds–other than the witness’ convenience–can justify the admission of their ex parte, out of court accusations without the opportunity for cross-examination??
?? Even if Mr. O’Maley never makes it to the U.S. Supreme Court, this issue is sure to be resolved either by the U.S. Supreme Court or by the slow accretion of precedent in the lower courts.?
