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U.S. Supreme Court To Hear N.M. Case

By Scott Sandlin
Copyright © 2010 Albuquerque Journal
Journal Staff Writer

          Does a person accused of a crime have the right to question the author of a lab test in court — or does another analyst's testimony meet constitutional requirements?
        That question underlies a 2005 driving while intoxicated case, Bullcoming v. New Mexico, that originated in San Juan County and is now destined for a decision by the U.S. Supreme Court.
        A reversal of decisions made in New Mexico could wreak havoc with the state's DWI prosecutions, according to the Bernalillo County District Attorney's Office.
        The U.S. Supreme Court, which takes roughly one case in 100, has decided to review the New Mexico Supreme Court's opinion upholding a conviction.
        Last year, the nation's highest court decided about 80 cases of the 8,000 submitted to it.
        According to court documents, Donald Bullcoming, 39, bumped a truck at a stop sign in August 2005, causing slight damage to the other vehicle. The other driver reported to police that Bullcoming smelled of alcohol.
        By the time Farmington police arrived 45 minutes later, Bullcoming had walked away from the scene. He told officers he wasn't drunk at the time of the crash, but had joined some men under trees and finished a half-gallon of vodka with them.
        His blood alcohol was tested two hours after the wreck at 0.21 percent, and he was charged with aggravated driving while intoxicated.
        Bullcoming's lawyer objected to testimony by an analyst who had not performed the test, arguing that another analyst shouldn't be allowed to testify about a report he had neither conducted nor reviewed.
        The trial judge, relying on a 2004 U.S. Supreme Court opinion, said the report could be admitted. The witness, an employee at the New Mexico Scientific Laboratory Division's toxicology bureau, said the analyst who actually performed the test was on unpaid leave.
        The witness testified about the accuracy of the gas chromatograph blood test and Bullcoming was convicted of a fourth-degree felony and sentenced to two years in prison.
        Both the New Mexico Court of Appeals and the New Mexico Supreme Court affirmed the conviction.
        Susan Roth, an appellate attorney in New Mexico Public Defender Office, petitioned the U.S. Supreme Court to hear the case.
        "State high courts and federal courts of appeals are deeply and intractably divided" about whether the right to confront witnesses allows the prosecution to submit forensic reports and permit testimony by someone who didn't do or observe the test, Bullcoming's petition said.
        Roth argued the U.S. Supreme Court should use Bullcoming's case to resolve the "escalating conflict."
        Assistant Attorney General Ann M. Harvey countered that the case did not merit the high court's attention.
        New Mexico justices, she said, determined that the testimony of another qualified analyst was sufficient to satisfy the defendant's constitutional rights.
        The state Supreme Court, she noted, viewed the raw data in the blood alcohol report as equivalent to "testimony from a machine that could not be examined as a witness," rather like a copyist in the early 1800s who certified the truth and accuracy of the copy.
        DWI fallout
        District Attorney Kari Brandenburg of Albuquerque said that requiring the analyst who performed a test to testify in each case would make prosecutions much more time-consuming and more costly.
        "Especially in these economic times, it could potentially cause the whole system to collapse in terms of DWI prosecutions," she said. "I'm not one of those people who says the sky is falling, but when everybody is so underfunded ... there's no slack. I just don't think we could do it."
        Jeffrey Fisher, co-director of the Supreme Court litigation clinic at Stanford Law School and the attorney who will argue for Bullcoming, said the assertions in a report must be tested during questioning of the person who created it, not a surrogate.
        "It's no different than a witness saying, 'I heard shots ring out at 12 o'clock' because they looked at their clock. We're not asking to cross-examine the clock. We're asking to cross-examine the person who claims the clock said 12," he said.
        The Bullcoming case is a significant one, he said, "in the sense that it is a foundational rule of criminal trials that a defendant has a right to cross examine the prosecution's witnesses."

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