Yesterday, the United States Supreme Court announced its decision in Bullcoming v. New Mexico, reversing the New Mexico Supreme Court’s decision allowing the state to introduce a blood alcohol result through the testimony of a chemist who did not conduct the test. The case was argued and won by Jeffrey Fisher of Stanford Law School. I was privileged to have participated, along with Justin McShane, Ron Moore, Barbara Bergman, Molly Schmidt-Nowara and Alexandra Smith in writing an amicus brief on the winning side for the National College for DUI Defense, the National Association of Criminal Defense Lawyers, and the New Mexico Criminal Defense Lawyers Association. Our brief can be characterized as a kind of “Gas Chromatography for Dummies,” so that non-scientists could understand the complexity of the process, and why it is necessary to be able to question the actual chemist in order to be able to discover potential mistakes in the process or false statements. Footnote 1 of the court’s opinion shows that the five member majority got the message.
Bullcoming should not have any effect on state court proceedings in Maryland. Maryland has what is called a “notice and demand” statute that allows the prosecution to file a notice of a chemist’s report and phlebotomist’s testimony and requires the defense to file a demand for the presence of the chemist or analyst and of the qualified medical person who withdrew the blood. In state court, most lawyers routinely file such demands in blood test cases and unless the chemist comes to court the State cannot use the test result. By requiring the actual chemist and phlebotomist to come to court for the State to use a blood test result, Bullcoming changes nothing in Maryland state court because in almost all cases the actual chemist and phlebotomist is already required to come to court. However, in federal court, there is no comparable notice and demand statute and the government usually tries to introduce the blood test through a lab supervisor.
The vote in Bullcoming was 5-4. Justice Sotomayor’s concurring opinion made it appear likely that for the moment she will be the deciding vote in future Bullcoming cases. She indicated there were 4 scenarios not addressed by Bullcoming, which could potentially lead to a different result. Some of these scenarios may have to be litigated in the Supreme Court. There are good reasons why I believe Bullcoming will hold.
1. Justice Sotomayor said if the test was for medical purposes, the analyst may not be required. This is nothing new. Melendez-Diaz in a footnote said medical reports were not testimonial and cited a Maryland case with approval. Garlick v. State holds that a medical lab report comes in if it is pathologically germane to treatment and there is an expert to explain its meaning. Alcohol tests sent to a state lab for prosecution are never used for medical purposes.
2. Justice Sotomayor noted that a supervisor might be able to testify to the result of a chemist working under him or her. Gas chromatography tests are complex procedures that require precision each step of the way. While no supervisor would see all of the process, it is unlikely a supervisor would observe enough of the process to testify about what was done.
3. Experts are usually allowed to give opinions based on facts that don’t come into evidence but which are usually relied upon by experts in forming opinions. The lower courts are split on how this principle is to be applied where the actual blood analyst does not testify. Justice Sotomayor said, “We would face a different question if asked to determine the constitutionality of allowing an expert witness to discuss others’ testimonial statements if the testimonial statements were not themselves admitted as evidence.” Logically this does not make much sense, and there are opinions holding that you can’t use this theory to get a hearsay opinion into evidence and that an opinion generated for purposes of litigation is not the type of opinion relied upon by other experts. If the expert’s opinion is an independent opinion based only on raw data, the problem remains how the state can supply necessary chain and preparation testimony which can only be supplied by the actual analyst.
4. Machine driven data. Justice Sotomayor said: “Thus, we do not decide whether, as the New Mexico Supreme Court suggests, 226 P. 3d, at 10, a State could introduce (assuming an adequate chain of custody foundation) raw data generated by a machine in conjunction with the testimony of an expert witness. See Reply Brief for Petitioner 16, n. 5.” The problem here may be the assumption of an adequate chain of custody foundation since the actual analyst in a blood alcohol test is likely to be an essential part, the last part, of the chain of custody.
Significantly the opinion states in footnote 2:
The State called as witnesses the arresting officer and the nurse who drew Bullcoming’s blood. Bullcoming did not object to the State’s failure to call the SLD intake employee or the reviewing analyst. “It is up to the prosecution,” the Court observed in Melendez-Diaz v. Massachusetts, 557 U. S. ___, ___, n. 1 (2009) (slip op., at 5, n. 1), “to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live.”
This speaks for itself. The problem the State will have is that the analyst is necessarily the last witness in the chain of custody since he is the one who takes a pipette and withdraws the defendant’s blood and an internal standard from a grey top tube and puts into the GC vial. This must be done precisely, and must “be introduced live.” What remains to be seen is how Bullcoming will survive in federal court in Maryland. I will be arguing in future cases that United States v. Darden, a case of mine holding that a supervising analyst may testify in place of the actual analyst, is no longer good law.
If you are facing serious traffic charges in state or federal court in Maryland call Leonard R. Stamm or Johanna Leshner of Goldstein & Stamm, P.A. at 301-345-0122 for a free consultation.
Leonard R. Stamm Goldstein & Stamm, P.A.
6301 Ivy Lane, Suite 504 Greenbelt, Maryland 20770 www.lstamm.com 301-345-0122 (fax) 301-441-4652
Author: West’s Maryland DUI Law