Columbus OVI/DUI Attorney Blog
In DUI cases (called ‘OVI’ in Ohio), a defendant’s blood or urine sample may be tested by a crime lab to determine the concentration of alcohol and/or drugs in the sample. In court, a lab analyst testifies regarding the blood or urine testing and the results of the test. But what if the analyst testifying is not the analyst who conducted the test? The recent case of Smith v. Arizona addressed whether this violates the defendant’s right to confront witnesses.
The Facts of Smith v. Arizona
Law enforcement officers found Smith in possession of what appeared to be drugs, and Smith was charged with drug possession. The suspected drugs were sent to a crime lab for testing. Analyst Elizabeth Rast tested the items and concluded they were methamphetamine, marijuana, and cannabis. Rast documented her testing process and conclusions in typed notes and a signed report.
Rast stopped working at the crime lab and did not testify at Smith’s trial. Instead, analyst Greggory Longoni testified. Longoni told the jury what Rast’s notes and report said, and Longoni offered an “independent opinion” that the items were methamphetamine, marijuana, and cannabis. Smith was convicted.
Smith appealed to the Arizona Court of Appeals, arguing Longoni’s testimony violated Smith’s right to confront the witnesses against him. The Court of Appeals rejected the argument and affirmed Smith’s conviction. Smith appealed to the United States Supreme Court.
The Issue in Smith v. Arizona
The Sixth Amendment guarantees that the defendant in a criminal trial shall be confronted with the witnesses against him. This is known as the ‘Confrontation Clause’. The issue in Smith is whether it violates the Confrontation Clause when an expert witness testifies about the substance of a non-testifying expert’s analysis in the context of providing an “independent opinion” regarding the analysis and its results.
Precedent Leading-Up to Smith v. Arizona
In Crawford v. Washington, the United States Supreme Court held the Confrontation Clause bars the admission of ‘testimonial’ statements of a non-testifying witness unless the witness is unavailable to testify and the defendant had a prior opportunity to cross-examine the witness. A statement is ‘testimonial’ if the statement is made “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial”.
In Melendez-Diaz v. Massachusetts, the prosecution admitted as evidence a laboratory analyst’s report identifying a substance as cocaine. The prosecution did not call the analyst as a witness. The United States Supreme Court found admission of the report violated the defendant’s confrontation rights because: (1) the analyst’s report was ‘testimonial’; (2) the defendant did not have an opportunity to cross-examine the analyst; and (3) the report was offered for the truth of the matter asserted in the report: the substance was cocaine.
In Bullcoming v. New Mexico, a laboratory analyst testified about a blood alcohol test, but it was not the analyst who performed the test. The testifying analyst told the jury what the testing analyst did and the conclusion the testing analyst reached. Based on the rationale of Melendez-Diaz, the Court held this violated the defendant’s right to confront the analyst.
In Williams v. Illinois, a laboratory analyst testified about a DNA test she did not conduct. In this case, however, the testifying analyst testified it was her own independent opinion, based on the other analyst’s testing, that the DNA matched the defendant. The Court ultimately affirmed the defendant’s conviction, but there was no majority opinion. As a result, the Williams case caused confusion regarding whether it is permissible for an expert to testify about the substance of a non-testifying expert’s analysis in the context of providing an “independent opinion” regarding the test and its results.
The Decision in Smith v. Arizona
The confusion caused by Williams was addressed in Smith. Both cases involved a non-testing expert testifying about a non-testifying expert’s analysis in the context of providing an “independent opinion” regarding the test and its results. In Smith, however, there is a majority opinion.
The majority opinion in Smith concluded the non-testifying analyst’s notes and report were offered for the truth of the matter asserted: the items were methamphetamine, marijuana, and cannabis. In addition, it was obvious the defendant did not have an opportunity to cross-examine the analyst. The remaining question was whether the analyst’s report was ‘testimonial’.
The Court did not answer the remaining question because it was not raised. The issue in the Arizona Court of Appeals was whether the non-testifying analyst’s notes and report were offered for the truth of the matter asserted. The Court of Appeals, and the defendant, did not address the ‘testimonial’ nature of the analyst’s notes and report. They “took it as a given” the notes and report were ‘testimonial’. As the United States Supreme Court is “a court of review, not of first view”, the Court did not decide the ‘testimonial’ issue. Instead, the Court remanded the case to the Arizona Court of Appeals to decide whether the notes and report were ‘testimonial’.
The Impact of Smith v. Arizona on Ohio OVI Cases
In Ohio OVI cases, lab analysts testify regarding the concentration of alcohol and/or drugs in a sample of the defendant’s blood or urine. Although the Smith Court did not address the ‘testimonial’ character of the analyst’s notes and report, the ‘testimonial’ nature of the notes and report is clear. The notes and report are made “under circumstances which would lead an objective witness reasonably to believe that the [notes and report] would be available for use at a later trial”. Not only could they be used at a later trial, the primary purpose of the notes and report is to be used at a later trial. If a non-testing analyst in Ohio were to testify about the blood or urine test and its results, that analyst’s testimony should be excluded because it violates the Confrontation Clause.