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King Argues DWI Case in U.S. High Court

By Michael Coleman
Journal Washington Bureau
          WASHINGTON – New Mexico Attorney General Gary King tried to convince the U.S. Supreme Court on Wednesday that the prosecution of a 2005 drunken driving case in New Mexico was legal, even though defense lawyers never had a chance to cross-examine the lab technician who took the driver's blood sample.
        The central question before the justices was whether a defendant's Sixth Amendment right to confront and cross-examine witnesses extends to the analyst who prepares a report about blood tested in a DWI case.
        King, arguing for the state in a case that could have implications for DWI prosecution and laboratory analysis nationwide, argued that a lab report showing an over-the-legal limit blood alcohol content was not "testimonial" in nature. Therefore, King argued, the report's inclusion as evidence did not require further testimony from the technician who filed the report.
        "Even if (the technician) had been at the trial and on the stand, it would have been necessary to have the report, as well," King told the court. "The report is the best evidence in this case to prove the point that is being made."
        Jeffrey Fisher, co-director of the Supreme Court litigation clinic at Stanford Law School and the attorney appointed to argue for the defendant Tuesday, disagreed. Fisher implored the court to reverse a New Mexico Supreme Court decision upholding the driver's conviction, arguing that it violated the Confrontation Clause of the Sixth Amendment. That clause says that, "in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him."
        The New Mexico case centers on the 2005 arrest of Donald Bullcoming, who was taken into police custody in San Juan County for driving while intoxicated. His blood was drawn for testing by the state Health Department's lab. At trial, the lab report was admitted into evidence, even though the technician who determined the blood alcohol level wasn't called to testify. Instead, the analyst's supervisor was.
        Bullcoming was convicted, and the New Mexico Supreme Court upheld the conviction. The nation's highest court accepted his appeal and heard arguments Wednesday.
        King argued Wednesday that requiring specific lab technicians to testify at DWI trials could lead to those technicians spending more time in courts than in labs.
        Fisher argued that a surrogate witness to Bullcoming's blood test wasn't sufficient under the law.
        "Surrogate witness procedure violates all four components of the right to confrontation," Fisher argued. "It quite obviously violates the defendant's right to have the witness testify in his presence, in the presence of the jury so the jury can observe it, and under oath, as happened in this case."
        At least seven of the court's justices asked questions during the argument.
        Justice Antonin Scalia was especially probing of King's arguments. Scalia noted that the lab analyst who conducted Bullcoming's test could not testify in court because he had been placed on unpaid administrative leave at the time.
        Scalia said perhaps the technician was placed on unpaid leave by his superiors specifically so he wouldn't have to testify.
        "I don't know what the facts (surrounding the unpaid leave) are, but, boy, it smells bad to me — it really does," Scalia said. "And even if that was not the case, the mere possibility that it could have been the case shows why you should have to bring this person in if you want to introduce his testimony."

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