In the past decade, the United States Supreme Court has issued several opinions addressing a DUI defendant’s right to confront a breath or blood test used by the prosecution to prove intoxication at trial. In legal terms, the word “confront” essentially means cross-examine. An example of this confrontation right in the context of a drunk driving case would be the right to cross-examine the police officer who administered a breath test, or the forensic analyst who prepared a blood sample for testing. This issue came before the USSC again in 2018. The name of the case is Stuart v. Alabama. Unfortunately, the USSC declined the opportunity to clarify this issue, and by order dated November 19, 2018, denied the defendant’s petition for review (certiorari).
However, there was a dissenting opinion written by Justice Gorsuch and joined by Justice Sotomayor. This opinion contains some interesting information. Perhaps picking up the cross-examination baton laid down by Justice Scalia, Justice Gorsuch refers to cross-examination as “the greatest legal engine ever invented for the discovery of truth.” Furthermore, that:
Cross-examination is an essential guard against such mischief and mistake and the risk of false convictions. Even the most well-meaning analyst may lack essential training, contaminate a sample, or err during the testing process.
Justice Gorsuch explains that the Constitution promises every person accused of a crime the right to confront his accusers[i]. That promise was broken in this case because the court allowed a blood test into evidence without any sponsoring witness, meaning the defendant was deprived of the right to cross-examine anyone involved in the preparation of the report. This means that the jury did not have an opportunity to appropriately weigh the evidence by learning whether or not there was the possibility that the person conducting the testing lacked the appropriate training, or failed to follow it, whether the sample was contaminated in some way during the preparation or testing, and whether or not there was any error in the testing process. Because juries in drunk driving cases are told they may convict based on the results of the breath/blood test alone, allowing the test in without cross-examination is akin to asking a jury to rubber-stamp the drunk driving conviction.
There is significant disparity among the states, and disparity even courts within each state, regarding how vigorously confrontation rights are protected. When, as here, the law is unclear, trial courts are left with wide discretion that can sometimes result in defendants being deprived of their Constitutional rights. It is unfortunate the USSC failed to accept the Stuart case and thereby offer clarification on this important trial issue.
[i] Amdt. 6.