Los Angeles DUI Defense: Non-Testifying Witness

October 28, 2012

During a DUI trial in Los Angeles, the government must rely on live witnesses.  At Los Angeles DUI trial, the government will usually have a police officer and an expert testify.  If your blood was tested for alcohol, the DA 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 for trial, you must ask the court to get your Los Angeles DUI dismissed.  Sometimes, the prosecutor will agree with you and dismiss your Los Angeles DUI when the police or their expert is not testifying.

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.  To try to win your Los Angeles DUI because your right to confront a witness was violated, you have to follow 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 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 (1) firmly rooted hearsay exception and it had (2) a particular guarantee of trustworthiness.    Crawford permits “testimonial” hearsay only when (1) the witness is unavailable and (2) 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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