Bullcoming -- the Supreme Court Reverses a Drunk-Driving Case

June 24, 2011

For many, if not most, Americans, your first brush with the law likely comes when you're behind the wheel of your car.  Suddenly, there are lights spinning behind you, a siren wailing, and some law officer yelling at you to pull over.  At best, you may have innocently exceeded the speed limit or went through a yellow light. At worst - ahhhh, now the possibilities become exponentially unnerving.

Maybe you're high on drugs. Maybe you had one too many at the bar. Maybe there's an unlicensed gun under your seat.  Maybe you left a bleeding victim at the scene of the accident.

Regardless of the facts and circumstances, what starts out as a common traffic stop can quickly spiral out of control with devastating impact upon your life. Consider this recent case:

Rear-end Collision

In August 2005, Donald Bullcoming rear-ended a pick-up truck at an intersection in Farmington, New Mexico. You know, that could almost be the start of a song by the Eagles.

When the truck driver exited his vehicle and approached Bullcoming to exchange insurance information, that driver noted Bullcoming's bloodshot eyes and the apparent smell of alcohol on his breath - which prompted him to tell his wife to call the police.  Before the police could arrive, Bullcoming had left the scene; however, he was soon apprehended by an officer who administered field sobriety tests, which Bullcoming failed. Bullcoming was arrested for driving a vehicle while "under the influence of intoxicating liquor" (DWI).

Blow Into This

After Bullcoming refused to take a breath test, the police obtained a warrant authorizing a blood-alcohol analysis, which was administered at a local hospital. The police sent the blood sample to the New Mexico Department of Health, Scientific Laboratory Division (SLD). Forensic analyst Curtis Caylor certified his finding on the standard SLD form titled "Report of Blood Alcohol Analysis."  Caylor's commentary noted that Buillcoming's blood sample tested a .21 grams per hundred milliters, which supported a prosecution for aggravated DWI, (0.16 grams per hundred milliliters).

Calling Caylor

On the day of Bullcoming's trial, without prior disclosure, the State announced that it would not be calling Caylor as a witness because he had "very recently [been] put on unpaid leave" for undisclosed reasons. Instead, the State proposed to introduce Caylor's finding as a "business record." The State intended to lay the foundation for this introduction through the testimony of Gerasimos Razatos, an SLD scientist who had neither observed nor reviewed Caylor's analysis.

SIDE BAR: Notwithstanding that the books and records of a business can take on the nature of improper "hearsay" evidence, most American rules of evidence have created an exception for so-called "business records."

When a lawyer attempts to introduce a "business record," the standard practice is to do so through a custodian of the proffered document or another individual who has first-hand knowledge/experience with the manner by which the business maintains the document. This witness should be able to affirm that the material was prepared in the ordinary course of business by a person with knowledge of the information recorded, and that the document was prepared contemporaneously (or reasonably near) the time of the event at issue. The witness should be the record custodian or some other person with knowledge of the business's filing or storage system. Finally, the business record should not have been prepared solely for litigation.

Notwithstanding the above, rules of evidence often provide for "self authenticating" records, which are introduced into evidence via a certificate/affidavit and typically pertain to public records and those of certain institutions.

Bullcoming's defense lawyer objected to the introduction of the so-called business record and Razatos's testimony, claiming that such evidence violated the Sixth Amendment to the U.S. Constitution's  right to confrontation. The Trial Court overruled the objection, admitted the SLD report as a reliable "business record," the jury convicted, and the New Mexico Court of Appeals upheld on the basis that "the blood alcohol report in the present case was non-testimonial and prepared routinely with guarantees of trustworthiness."

As if.

Thus, the stage was set for a dramatic appeal to the US Supreme Court.

The Supremes Speak

Justice Ginsburg's Opinion sets forth the basis for reversing Bullcoming's conviction in fairly succinct terms:

The question presented is whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification-made for the purpose of proving a particular fact-through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification. We hold that surrogate testimony of that order does not meet the constitutional requirement. The accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.

Clearly, the Majority was troubled by the surrogacy aspect of the critical testimony, particularly as to the ability of the defense to probe, question, and dispute Caylor's methodology and findings.  In light of the last-minute substitution of  Razatos for Caylor - and the lack of any explanation as to why Caylor was not available to testify or why Razatos could not have re-tested the sample and presented his own findings, the Majority was not prepared to simply sweep the constitutional issue aside.  In expressing those reservations, Ginsburg's Opinion explains:

[A]s a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness. Because the New Mexico Supreme Court permitted the testimonial statement of one witness, i.e., Caylor, to enter into evidence through the in-court testimony of a second person, i.e., Razatos, we reverse that court's judgment.

Calling Galileo?

At some point, veteran prosecutors must wonder whether the Court is splitting hairs (to which veteran defense lawyers would offer the scissors).  Are there not some facts that are somehow beyond dispute - for example, don't Courts take judicial notice that there are 24 hours in a day or that the sun rises in the east and sets in the west?  Must every fact be subject to the defense's right to test its veracity?  Aren't there facts that simply do not require the need for a witness's testimony? In an effort to address such concerns, Ginsburg's Opinion explains:

[T]he State maintains that the affirmations made by analyst Caylor were not "adversarial" or "inquisitorial," Brief for Respondent 27-33; instead, they were simply observations of an "independent scientis[t]" made "according to a non-adversarial public duty," id., at 32-33. That argument fares no better here than it did in Melendez-Diaz. A document created solely for an "evidentiary purpose," Melendez-Diaz clarified, made in aid of a police investigation, ranks as testimonial. 557 U. S., at ___ (slip op., at 5) (forensic reports available for use at trial are"testimonial statements" and certifying analyst is a "‘witness' for purposes of the Sixth Amendment").

SIDE BAR: Simplistically, I would sum the Opinion as admonishing prosecutors that if you administer a blood test to demonstrate the legal intoxication of a citizen for the purpose of presenting that fact at trial, the results of that test are not going to be eased into evidence under the rubric of a "business record." Make sure you have a warm body available to sit in the witness chair and testify as to the chain of evidence, how the test was administered, and what the results were - and if, for some reason, the warm body that you need is unavailable, then either seek an adjournment of the trial until such time as your witness is available or have another warm body re-test the remaining contents of the sample and testify to the requisite facts in court.

Why the need for such precautions?  Well, as recent headlines have shown, most medical/lab procedures involve human error, and given the pressure on many forensic crime labs these days (between lay-offs, budget constraints, and exploding caseloads), sometimes the results are - how should I say it? - fudged? Just recently, the Nassau County, New York crime lab was shut down when it was discovered that many drug tests may have been fraudulently certified as accurate in court, thus raising questions as to some 9,000 convictions from 2007 to 2010. See,"New York County Crime Lab Closed Down in Probe" (Reuters, February 18, 2011).

Anyone Think of This?

One must wonder if there wasn't a fairly simple solution to this whole mess.  As raised in the Opinion:

[N]ew Mexico could have avoided any Confrontation Clause problem by asking Razatos to retest the sample, and then testify to the results of his retest rather than to the results of a test he did not conduct or observe.

The Dissent

Justice Kennedy's dissent is largely premised upon this point:

[T]he Court today takes the new and serious misstep . . . Here a knowledgeable representative of the laboratory was present to testify and to explain the lab's processes and the details of the report; but because he was not the analyst who filled out part of the form and transcribed onto it the test result from a machine printout, the Court finds a confrontation violation.

SIDE BAR:  Justice Ginsburg delivered the Court's Opinion, except as to Part IV and footnote 6. Scalia joined that Opinion in full with Sotomayor (who also filed a partial concurring Opinion) and Kagan joining as to all but Part IV. Thomas joined as to all but Part IV and footnote 6.  Kennedy filed a dissenting opinion, in which Roberts, Breyer, and Alito joined.

Read the full-text Opinion of Donald Bullcoming v. State of New Mexico (564 U.S.___ (2011))