Los Angeles DUI Defense: Non-Testifying Witness
During a Los Angeles DUI trial, usually, the testimony must be live. This means that since the DA has the burden of proving a case, witnesses must come in person to testify regarding all elements of a crime.
There is an exception for live testimony of witnesses at the preliminary hearings. A preliminary hearing is a probable cause hearing (see California Penal Code section 866(b)) during which the magistrate has to determine if a “probable cause” exists to have a trial. Unlike a trial, at the preliminary hearing, the defense does not have a right to present defense unless it gives the judge an “offer of proof”. However, unlike a trial, at a preliminary hearing, such as a felony DUI prosecution or any other felony prosecution, California law permits hearsay testimony where a live witness can testify to hearsay statements by other persons. This was adopted as part of Proposition 115 to allow hearsay at the preliminary hearing and can be found in Penal Code 872(b). However, “properly construed” Prop 115 does not authorize simply reading someone else’s report, and thus under Whiteman v. Superior Court, 54 Cal. 3d 1063, the person testifying has to have some direct knowledge of the facts.
JURY INSTRUCTIONS
For a DUI, the elements of a crime are found in California Jury Instructions, known as CALCRIM, 2110 and 2111.
1. The defendant drove a vehicle; AND2. When (he/she) drove, the defendant was under the [combined] influence of (an alcoholic beverage/ [or] a drug/ [or] an alcoholic beverage and a drug)
CALCRIM 2111 elements of an “above .08” DUI, to wit, VC 23152(b)
1. The defendant drove a vehicle; AND2. When (he/she) drove, the defendant’s blood alcohol level was 0.08 percent or more by weight.
To prove both of those elements under CALCRIM 2110 and 21111, in a Los Angeles DUI trial, the District Attorney or Los Angeles City Attorney will usually have at least 2 witnesses testify: (1) the investigating police officer and (2) a toxicology expert. If your blood was tested for alcohol, the Los Angeles DUI prosecution will want to use the results of the blood test to prove that you were above the legal limit of .08% BAC. In a situation where an analyst who measured the level of alcohol in your blood is not available, you must the court to ask for the dismissal of your Los Angeles DUI. Just the same, if the police officer who arrested you is not available to testify at your Los Angeles DUI trial, you must ask the court to dismiss your Los Angeles DUI case. Sometimes, the prosecutor will agree with you and dismiss your Los Angeles DUI when the police or their expert is not available to testify. Here is why:
In DUI, like in many other cases, the government will have a lab report as evidence of blood or drug alcohol level. When the person who prepared such a report is not testifying – the right to confront a witness is violated. This is known as a “right of confrontation” and it comes from the 6th amendment to the US constitution. You can win your Los Angeles DUI when your right to confront a witness was violated but you have to follow proper steps to exclude the evidence of a “non-testifying declarant”. This became a lot more difficult due to recent decisions by the California courts. When the government tries to use another person from the crime lab to testify about your blood sample, the objection to the other person’s testimony must be made but it is less likely that the court will not allow the testimony.
HERE IS HOW IT WORKS FOR DUI DEFENSE:
First, when this evidence is introduced, the DUI defense lawyer has to object (if the objection is not raised, it is waived).
Second, only when the evidence is “testimonial”, it does not come in. So your DUI defense attorney has to argue that the report is a testimonial. Here is the law on that:
In some cases, California law got a lot better for Los Angles Criminal defendants. In the court case of People v. Ogza, a conviction was reversed when the supervisor of the analyst instead of the analyst testified that the 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 lack 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 a maximum jail sentence of 4 years in prison. Virginia admitted to drinking alcohol and the prosecutor introduced evidence of her intoxication by having a colleague of the analyst who analyzed Virginia’s blood testify about her being 0.09 percent of alcohol in her blood two hours after the accident. But, also at trial, another witness, a toxicologist, testified that Windmark 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 state prison (which was a midterm for this crime). Lopez appealed by using the violation of the US Constitution’s 6th amendment right of confrontation; i.e., the defendant could not confront the actual person who analyzed the blood.
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:
- Firmly rooted hearsay exception and it had
- A particular guarantee of trustworthiness.
After Crawford permits “testimonial” hearsay only when
- The witness is unavailable and
- The defendant 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 DUI conviction by holding that a report establishing a blood alcohol level was 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 the 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 the 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“. 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 a 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.
If you are accused of a DUI, please call Los Angeles DUI attorney to get a free evaluation of your case.
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