Three cheers for Representative Rusty Kidd from Milledgville, who proposed a law that would give one-time offenders a second chance.  House Bill 799 would allow for the expungement of a DUI conviction after 5 years if the violator has had no more driving offenses within that time period.  Check out this link for an Atlanta Journal article:  http://www.ajc.com/news/georgia-government/dui-record-could-be-1316786.html)

 Currently, there is no relief in Georgia from a DUI conviction being on your criminal record.  Not a day goes by when we don’t get a call from a person who recieved a Marietta DUI or an Atlanta DUI and now wants to clear their record.  The problem is that even if the offense was 5, 10, 15, or more years ago, offenders can be denied jobs, scholarships, or other considerations based upon their record.  Often, these people were not aware of the impact of a conviction and entered a guilty plea without the advice or guidance of qualified legal counsel.

 Georgia law currently allows for first-time offenders of nearly every other crime imaginable to have their offense expunged from their record.  Folks, this is a great opportunity to get involved.  Contact you local state representatives and tell them that a DUI should be treated just like any other offense.  Here is a link  to find out how to contact your local state representative: http://www.congress.org/congressorg/officials/congress/

For the record, I think this new policy is cops gone wild.  The idea behind this new policy is that DUI is such a huge problem, and it is killing so many people, that we have to hold citizens down, stick needles in their arms and extract blood if they won’t cooperate when asked to take a breath test.  True enough, every evil has a remedy, but if we follow this logic to its conclusion, then we would save many more lives by forcing blood-cholesterol tests on people leaving McDonalds and Kentucky Fried Chicken!  Really, more than one in eight deaths in Georgia are the result of obesity related illnesses, and that’s 100 times the number of people who die in alcohol related car deaths. 

Well, I say enough is enough.  First, I would say that  DUI is a misdemeanor offense and there are limits to what we should do as a community to enforce misdemeanor laws.  We have tough DUI laws already:  refuse to take the test and your license can be suspended for a year.  And if you hurt someone else as a result of a DUI, then it becomes a felony. 

Second, I say forced bloods draw for a misdemeanor is creepy and gross—it’s like beating a kid with a belt for spilling milk!  Your body is the ultimate place of privacy.  Nobody should violate that unless it’s really, really important.  I don’t like needles and it turns out I’m not alone.  The biggest reason why people pass up flu shots is because of the needle.  The idea of holding someone down while you take their blood sounds violent.  The government should resort to physical violence as a last resort in only the most serious cases.  These new policies are aimed at routine suspicion of DUI.

Lastly, I would say that a conviction for DUI is not that important.  Let me give you an example.  Let’s assume that a man – John Smith — is arrested for suspicion of DUI because he admitted using alcohol and he was weaving.  But after the arrest Smith refuses all breath or blood tests.  The case goes to the prosecutors who decide they can’t prove DUI.  That isn’t the end, because the prosecutor can still insist on alcohol counseling and DUI school as part of any conviction—even for a reduced charge like Failure to Maintain Lane.   The value of the DUI conviction verses the value of a Failure to Maintain Lane conviction is very slight when the sentence is exactly the same.

This is a hot issue right now.  Speak up and say no because your silence will be taken as approval.

 http://youtu.be/_3PQQ3pUMuM

The Semrau Law Firm has a pending DUI case in Cobb County State Court where we have subpoenaed CMI, Corporation, the maker’s of the Intoxilyzer 5000, demanding that they bring the machine’s “source code” to Georgia.  The “source code” is essentially the operating parameters for Intoxilyzer 5000, the alcohol breath testing device used in Marietta, Cobb County and all of Georgia for suspected drunk and impaired drivers.  The attorneys for CMI, have filed motions opposing our subpoena in Kentucky.  This case is pending, with further hearings scheduled for this month, so we will keep you posted!

 As I watch the video from the recent Hiram/Paulding County roadblock, several issues come to mind.  The first relates to the underlying purposes of these roadblocks.  The “official” answer given is that their purpose was to establish sobriety checkpoints, safety belt and child passenger safety seat checks.  On their own, these are lawful purposes and can be helpful in DUI detection by a properly trained and informed officer.  

See for yourself, click this link to watch the video: http://dallas-hiram.patch.com/articles/hiram-road-checks-lead-to-arrests

 However, the scope and purpose of this checkpoint seems to shift into a more generalized crime detection operation.  In the video, one officer explains that he had personally searched 4 cars, with 3 of his searches resulting in drug possession charges.  Obviously, a search of a vehicle is not a necessary part of an investigation into seat belt and child seat checks.  Nor is a search of a vehicle, including the lifting of the seats (as seen at the 2:05 mark) part of a typical DUI investigation.  It certainly appears that the stated purpose of this roadblock does not coincide with some of the actual actions taken by the officers on the singled-out drivers.  Consider that 4th driver, the one whose car was searched by the police, but no drugs were found.  How was that driver benefited by the illegal search of his/her car?

 Finally, it’s important to remember that the field sobriety “tests” administered on the side of the road are voluntary.  If you don’t want to do them, then politely refuse.  Understand, however, that the officer won’t go out of his way to inform you that you absolutely don’t have to take his tests.  In fact, he’s likely to intimidate or otherwise try to influence you to take them so that he can better build his case AGAINST you!  These “tests” aren’t designed to “make sure you’re safe to drive home” as we so often hear.  They are specifically used so that a prosecutor has a better shot at convicting you at trial.

http://www.corpus-delicti.com/forensic_mis.html

 Executive Summary:  An entire line of Georgia cases authorizing the use of surrogate crime lab testimony is likely overruled by the latest U.S. Supreme Court decision to expand upon Crawford v. Washington.  Bullcoming v. New Mexico 131 S.Ct. 2705 (2011) stands for the proposition that crime lab tests can only be admitted through the testimony of the person who performed the tests; crime lab test results are themselves testimonial in nature and cannot be admitted through a surrogate.

 The Path to Bullcoming:  In 2004, the U.S. Supreme Court ended years of hearsay exceptions in Crawford v. Washington, 541 U.S. 36 (2004) holding that “testimonial” hearsay is barred by the Confrontation Clause, even if the statements were supported by “particular guarantees of trustworthiness.”  Traditional hearsay exceptions—such as business records, would not be barred, but less established exceptions such as “statements made to law enforcement officers” would no longer be accepted.  “Testimonial” hearsay includes statements made under circumstances that would lead the declarant to know that the statement is being used to establish some fact in the investigation of a crime.   

The next case to expand upon the reasoning of Crawford was Melindez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009).  The Supreme Court took up the question of whether “scientific reports” were testimonial when it considered a Massachusetts statute authorizing admission of crime lab test results by affidavit.  The Court barred the affidavit testimony, holding that a criminal defendant has the right to confront the actual witness.  The Court also further developed the “primary purpose” analysis, pointing to the fact that the affidavits were clearly testimonial because they were prepared exclusively for use in a specific criminal proceeding.  Note that the Georgia Statute, O.C.G.A. 35-3-154.1, which is very similar to the unconstitutional Massachusetts statute, was specifically endorsed by the Supreme Court because it creates a process where the State may give notice of its intent to proceed via affidavit and the defendant then has an opportunity to object. 

The Georgia Cases:  In Georgia, our Courts do not authorize crime lab testimony by affidavit, but they have routinely authorized testimony by others who did not perform the tests.  Dunn v. State, 292 Ga.App. 667 (2008) is typical of the facts and reasoning of the Georgia Courts.  In Dunn, a lab technician conducted tests on a substance believed to be methamphetamine.  The technician did not testify at trial, but an expert witness used the machine generated results and came to her own independent conclusion about the identity of the substance:

“The expert’s testimony was proper, however, because the supervisor came to her own independent conclusion that the substance was methamphetamine based on the chemical “fingerprint” from the [gas chromatography mass spectrometry] test… An expert may base his opinion on data collected by others….  A physician may order a blood test for a patient and infer from the levels of sugar and insulin that the patient has diabetes. The physician’s diagnosis is testimonial, but the lab’s raw results are not, because data are not “statements” in any useful sense.”

The Georgia Supreme Court recently followed this same reasoning in Herrerra v. State, 288 Ga. 231 (2010), authorizing the admission of an absentee lab technician’s report and a supervisor’s testimony because the supervisor had developed the lab procedures and trained the staff:

“[T]he lab supervisor, an expert in toxicology, testified that he developed the lab procedures and trained the staff as to how to perform the tests; that he supervised the employees who conducted the tests; and that, in his opinion, based on the results of the tests, Herrera tested positive for amphetamine, methamphetamine and cocaine metabolites.”

Bullcoming v.New Mexico

The reasoning utilized in the Georgia cases cited above is clearly invalidated by Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011).  In Bullcoming, the Defendant was arrested for DUI and given a blood test to determine his level of intoxication.  The technician who tested the blood was unavailable, so another analyst, who had nothing to do with the test, offered his testimony to explain the test results. 

 Writing for the majority (5-4, Ginsburg, Scalia, Thomas, Kagan, Sotomayor), Justice Ginsberg  styled the question as “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.”  The Court held that the test results themselves were testimonial and the Defendant Bullcoming had a right under the Confrontation Clause to confront the technician who performed the tests. 

The New Mexico Supreme Court had upheld the admission of the test results, so Justice Ginsberg evaluated their reasoning.  First, the Court rejected the idea that the surrogate was merely conveying and interpreting the results produced by a machine:  “[S]ources reveal that the matter is not so simple or certain.  In order to perform quantitative analysis satisfactorily… the analyst must adhere to good analytical practices and understand what is being done and why.”  The Court listed numerous accreditations contained within the test results themselves, namely that, (1) the sample was received intact, (2) the sample contained a viable test sample, (3) the tests were performed according to protocol, (4) no additional factors impacted the integrity of the tests.  The Court also pointed to numerous instances where lab technicians falsified data and also pointed out that similar surrogate testimony would not be allowed in other areas:

[Witnesses routinely testify] “to their observations of factual conditions or events, e.g., “the light was green,” “the hour was noon.”  Such witnesses may record, on the spot what they observed…  Could an Officer other than the one who saw the number on the house or gun present the information in court – so long as that officer was equipped to testify about any technology the observing officer deployed and the departments’ standard procedure?…. The answer is emphatically “No.”   

Second, the Court defined “Testimonial” in the context of laboratory results, finding that reports prepared in anticipation of criminal litigation are clearly testimonial: “an analyst’s certification prepared in connection with a criminal investigation or prosecution … is testimonial.”  Clearly the Court is focusing on the purpose of the procedure.  If the primary purpose for the blood test had been health related, then perhaps the State would not be required to produce the technician.   The Court left open the idea, and the concurring opinion by Justice Sotomayor clearly endorsed the idea, that a supervisor who actually witnesses the initial testing could testify in place of the technician—but this scenario seems fairly unlikely to appear with frequency.

Thus, the reasoning espoused by the Georgia line of cases has been invalidated because it relies on the idea that testing itself is non-testimonial.  At least as far as crime lab results, Georgia prosecutors should plan on bringing the witness who tested the materials, or retesting the materials with another witness.     

 Bullcoming and Georgia DUI Law:  Finally, it is worth noting the implications for DUI blood and breath testing.  My personal observations are that more and more Georgia DUI cases involve blood testing.  Patrol officers prefer blood testing when intoxicating substances other than alcohol are suspected.  I suspect this trend towards more blood tests is due to the (ridiculously) large number of physician prescriptions for anxiety and sleep aid medications.  Bullcoming will cost the state money because more blood tests will require more technician testing.  As state budgets continue to get smaller and crime technician are spread thinner, these issues will be more common.

 As to breath testing, OCGA § 40-6-392(a)(1)(A), requires that breath tests must be performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine operating with all its components attached and in good working order.  OCGA § 40-6-392(f) provides that a properly prepared and executed inspection certificate is admissible to satisfy this requirement.  The primary purpose test enunciated in Melendez- Diaz and Bullcoming suggest that reports relating to routine maintenance and inspection of scientific instruments are probably not “testimonial” because they were not performed for litigation and the certificates normally would not be used to prove a particular fact.  But in Georgia, the accuracy and quality of the approved device used for breath tests is a fact that must be established as the foundation to admission of the test results.  As noted above, before a breath-test result is admitted into evidence, the state must prove that the test was performed on an approved device with all its parts attached and in good working order.  The “primary purpose test would favor exclusion of the certificates because they are created for the purpose of proving a particular fact in a criminal prosecution.  Moreover, alcohol breath testing machines have no alternative purpose other than providing testimony for criminal litigation.  And lastly, the certificates themselves contain self vouching descriptive language such as “This breath-testing instrument was thoroughly inspected…”  Thus, it seems that the Bullcoming reasoning may exclude certificates of inspection as they are presently utilized in Georgia DUI breath-testing cases. 

The Future

Justice Sotomayor’s concurring opinion confirms her status as the “swing-vote” on this issue.  She likely would have approved the testimony if there had been some or perhaps any alternative purpose to the testing other than for use in a criminal prosecution.  Also, she suggested that a supervisor who had a substantial connection to the testing might be able to testify in place of the technician.  The future of this issue is likely to involve fleshing out the degree of acceptable attenuation between the individual conducting the tests and the individual testifying in court.  The U.S. Supreme Court has accepted Cert in Williams v. Illinois, where the State hired a private company to conduct DNA tests and then used a State expert to testify to their contents.  Based on my reading of Bullcoming, I’ll put money on the Illinois test results being excluded.

http://www.wsbtv.com/news/news/local/professor-dui-field-tests-designed-fail/nFdKg/

 My thoughts about this mess begin with wondering why such a young officer is allowed to police alone?  I think we need a more rigorous standard than a high school diploma before we hand out cars, guns and arrest powers.  A single criminal arrest can ruin a career.  Tight police budgets force solo policing, but its dangerous to everyone, cops and public alike.

I also wonder how a single officer can make 400 DUI arrest in two years.  I’ve long suspected that DUI Task Force officers have arrest quotas and competitions that make a game out of incredibly serious actions. 

And lastly, why is this guy not getting prosecuted?  I’ve seen people arrested for a lot less—like pissing on the sidewalk is a guaranteed trip to jail;  this guy pissed on other people’s lives and took them to jail!  I hate double standards.

Scott beat the odds this week when he got a not guilty jury verdict in a felony drug distribution case in Douglas County, Georgia.  The client drove his girlfriend and accompanied her on two separate occasions when she sold drugs to an undercover agent.  The Defense maintained that the client was unaware of the girlfriend’s actions.  The government’s best plea-bargain offer before trial was three years in prison.  Well done Scott.  That is one very happy client!!!

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