High court ruling leads to dismissal of DUI cases

Los Angeles Times

WASHINGTON— Until last month, the strongest evidence in drug and drunken driving cases in courtrooms across the United States often was a piece of paper. A crime lab or breathalyzer report would confirm that the defendant indeed had illegal drugs or a high level of alcohol in his or her system.

But a U.S. Supreme Court decision has sent a jolt through that system.

Now the prosecution must make a lab technician available to testify in person if the defendant demands it. As a result, some cases have been dismissed.

One state, Virginia, has called a special legislative session to change its laws. And some lawyers think the ruling will continue to have a major impact.

In a 5-4 decision, the high court said lab reports served as “witnesses” for the prosecution. And because the Sixth Amendment gives defendants a right to “be confronted with the witnesses against him,” Justice Antonin Scalia said drug defendants and others were “entitled to be confronted with the (lab) analysts at trial.”

While Scalia said the decision upheld the basic right to question the government’s witnesses, the four dissenters said the ruling had “vast potential to disrupt” the criminal courts. They also said it gave “a great windfall” to defendants, some of whom could have their cases dismissed because a lab technician was not available to testify.

Some prosecutors have said they fear the uncertainty -- and the potential cost -- of being required to have lab technicians ready to testify.

“This is a train wreck in the making,” said Scott Burns, executive director of the National District Attorneys Association. “The court is saying you can’t submit an affidavit saying that the cocaine is cocaine. The criminalist must be there to testify the cocaine is cocaine. Particularly in rural states and in smaller communities, this is going to be a major problem.”

In Virginia, several judges in the past month have dismissed drunken driving charges against motorists because technicians were not in court to testify about how a breathalyzer was calibrated.

Gov. Timothy Kaine has called a one-day special session of the Legislature to pass a bill, similar to laws in dozens of states, that will put defendants and their lawyers on notice prior to a trial that a lab report will be submitted as evidence. The defense lawyer then would have a duty to tell prosecutors whether a lab tech must be there to testify.

The Supreme Court’s decision also raised questions. For example, is the required witness the lab technician who ran an evidence sample through a machine, or the expert who programmed or calibrated the machine?

It is also not clear what happens in cases where the lab expert is not available. “What are you supposed to do if your ballistic expert moved from Cleveland to Phoenix prior to the trial?” Burns said.

“We are particularly concerned about prosecuting cold cases,” said Lael Rubin, a deputy district attorney in Los Angeles, because the lab experts who worked on those old crimes may no longer be available. She said the decision could force the retesting of old samples, assuming they can be tested.

Perhaps the biggest question is how many defendants will take advantage of this new right. More than nine in 10 drug cases end in a plea bargain, not a trial before a jury.

Stanford University law professor Jeffrey L. Fisher, who won the case before the high court, said states such as California and Illinois routinely bring crime experts to trials. Other states require prosecutors and defense lawyers to agree in advance what kinds of evidence will be submitted.

“It may take a little while, but people will figure this out,” Fisher said.