US Supreme Court: Breathalyzer Results Not Valid Evidence Without Operator Testimony to Back It Up

In cases where a motorist has been arrested for drunken driving, one of the more significant pieces of evidence for the state is the resulting blood-alcohol content (BAC) measurement from the breathalyzer or Alcotest device employed by police agencies all across the Garden State. One thing to keep in mind, however, is that this machine on its own cannot convict a motorist of driving while intoxicated.

As New Jersey drunken driving defense lawyers, I and my staff of experienced DWI attorneys have decades of experience representing driver accused of DWI and drug DUI. Regardless of whether you live in Ocean, Monmouth, Sussex, or Bergen County, when a police officer detects evidence of alcohol consumption by a driver, the resulting DWI arrest and drunken driving summons can set the stage for events that can change a person’s lifestyle, career and even their personal relationships.

Just last month, the U.S. Supreme Court made a ruling that may be of some help to those accused of drunken driving, especially if their BAC level was measured on a breathalyzer machine. According to news articles, the recent U.S. Supreme Court decision (Bullcoming v. New Mexico) made it clear that any results from an Alcotest machine or other breath testing device must be backed up by the operator’s testimony in court, or the results cannot be used as evidence against the defendant.

In this case, Donald Bullcoming was arrested on suspicion of DWI following a traffic accident with another vehicle. A state forensics laboratory tested the driver’s blood and determined that it his BAC was well over the legal limit. Taking his case to trial, Bullcoming’s conviction came without the testimony of the state technician who ran the BAC test. That individual was apparently not available due to being on unpaid leave. In lieu of testimony, state prosecutors introduced the technician’s written report combined with testimony from another technician familiar with the lab’s testing procedures.

The defendant was apparently convicted of DWI, after which he took his appeal to the U.S. Supreme Court. Just handed down last month, the Court essentially said that results from a machine cannot be admitted as evidence without corroborating testimony from the technician who operated the device at the time.

This goes to the Sixth Amendment of the U.S. Constitution, which provides that in every criminal prosecution, the accused has the right to be confronted with the witnesses against him. This right includes the right to cross-examine those witnesses if the defendant so chooses.

The State’s attorneys argued that the BAC report was merely a business record and as such can be admissible as evidence based on testimony to the effect that as a business record it must be kept accurately. In the Bullcoming case, the testing was done by an automated gas chromatograph machine, and the state apparently argued that the technician only makes a copy of the machine’s printout.

The resulting decision was split in favor of the plaintiff, Bullcoming, with Justices Ginsburg, Kagan, Sotomayor, Thomas and Scalia saying that the technician who actually ran the test must testify to the results in court. Justices Kennedy, Breyer, Alito, and Chief Justice Roberts, believed that a certified report introduced by any technician who understands that laboratory’s procedures would suffice.

In the dissenting comment, it was stated that the “analysis is mechanically performed by the gas chromatograph, which may operate — as in this case — after all the laboratory employees leave for the day,” is part of the argument that no particular technician need be present to testify to the reliability of the machine’s printout.

According to Justice Sotomayor, “The primary purpose of the BAC report is clearly to serve as evidence. It is therefore testimonial, and the trial court erred in allowing the State to introduce it into evidence via (the other technician’s) testimony.”

Supreme Court: machine print out not admissible evidence without human testimony, Examiner.com, June 23, 2011