A Huge Win For PA DUI Defendants
Commonwealth v. Barton-Martin: Bringing Pennsylvania Law Into Alignment With The United States Supreme Court Holding In Melendez-Diaz v. Massachusetts
A very good friend of mine and fellow attorney, Alicia Genther, had the opportunity to present an oral argument before the Superior Court of Pennsylvania on the Barton-Martin case. At the time, she was working on the case with one of the country's best DUI attorneys, Justin McShane. Alicia and I were discussing how exciting it was for her to have "won" this important decision, and I thought I'd like to share the details of this case. Congratulations to Attorney Genther and Attorney McShane....thank you for your hard work and dedication to the field of DUI law.
Recently, in Commonwealth v. Barton-Martin, 2010 Pa. Super. 163 (Pa. Super. 2010), the Superior Court of Pennsylvania issued a ruling which substantially changed the landscape of Pennsylvania DUI law. The Superior Court's opinion in Barton-Martin, which was issued on September 8, 2010, brings Pennsylvania DUI law into alignment with the United States Supreme Court's June 2009 decision in Melendez Diaz v. Massachusetts, 129 S. Ct. 2927 (2009).
So, at this point, you may be saying, "I don't even know what the law was before! How did it change?" You also may wonder why is this important to me? In this post, I will explain what the law was previously, how it changed and why this change matters to you.
First, we will begin with the United States Supreme Court decision in Melendez-Diaz. In this case, the defendant was charged with cocaine possession. At trial, the state's attorney attempted to introduce "certificates of analysis" into evidence, which conclusively identified the substance in question as cocaine. The state attempted to do so without the presence of the laboratory analyst, who was the person that had performed the analysis on the substance and had concluded that it was cocaine. In other words, the attorney for the state of Massachusetts attempted to introduce this single piece of paper as prima facie evidence that the defendant possessed a certain quantity of cocaine, without a live person to testify that the procedures utilized in the collection, preparation and testing of the substance were performed without error.
The defendant's attorney objected to the admission of this evidence and argued that its admission violated the defendant's rights under the Sixth Amendment, because the laboratory analyst was not declared to be unavailable and was not subject to prior cross examination by the defendant. The defendant's objection was overruled and the state's attorney was permitted to introduce the evidence against the defendant, which ultimately resulted in a guilty verdict in the trial court.
The defendant then appealed to the Appeals Court of Massachusetts and again argued that his Sixth Amendment Confrontation Clause rights were violated by the admission of the affidavits. The defendant alleged that the affidavits included in the certificate of analysis constituted a testimonial statement against him because it was introduced absent the defendant's first having an opportunity to confront the individuals who had taken part in the collection and forensic analysis of the substance identified as cocaine. The Appeals Court rejected the defendant's claim, citing prior Massachusetts law, which held that the authors of such certificates were not subject to Confrontation under the Sixth Amendment.
The defendant again appealed to the Supreme Judicial Court of Massachusetts, who refused to review the case, thereby affirming the defendant's conviction.
Thereafter, the defendant in Melendez-Diaz appealed to the United States Supreme Court, which concluded that his Sixth Amendment rights were, in fact, violated. The Supreme Court indicated that its holding in Melendez-Diaz was nothing more than a straightforward application of its prior precedent in Crawford v. Washington, where the Court had held that the Sixth Amendment guaranteed a defendant's right to confront those testify against him and, unless the witness who testifies against the defendant is declared unavailable or the defendant had a prior opportunity to cross-examine that witness, such evidence is inadmissible.
In its opinion in Melendez-Diaz, the United States Supreme Court began its analysis by first rejecting the state's argument that the laboratory analysts were not accusatory or unconventional witnesses and thus, not subject to confrontation. The state's attorney argued that the laboratory analysts should be exempted from Confrontation because they did not observe the crime or any action related to it and their testimony was not provided in response to interrogation. Disagreeing with the state's attorney, the Court stated that the laboratory analysts were subject to the Confrontation Clause and that their affidavits, though not provided in response to police interrogation, were provided in response to a police request. Moreover, the Court determined that the lab analyst was a conventional or accusatory witness because their affidavits proved a fact necessary for the defendant's conviction.
Next, despite the state's argument to the contrary, the Melendez-Diaz court concluded that the affidavits at issue were testimonial statements. To reach this conclusion, the Court looked to its prior Crawford decision, where it had stated that the core class of testimonial statements subject to the Confrontation Clause included "affidavits ... prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially ... extrajudicial statements contained in formalized testimonial maters, such as affidavits..."
In addition, the Crawford Court also indicated that this included "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial" were testimonial statements.
Using this reasoning, the Melendez-Diaz Court quickly concluded that the statements at issue - the affidavits in the certificates of analysis - were testimonial statements.
Next, the Melendez-Diaz Court rejected the state attorney's argument that, because the affidavits were performed by a laboratory professional that likely had no real connection to the defendant or had any interest in the outcome of the defendant's trial, the affidavits were the result of neutral, scientific testing. The Court, perhaps surprisingly to some people, indicated that not all forensic analyses performed are the result of neutral, scientific testing and even used statistics evidencing nationwide laboratory manipulation of forensic data. In addition, the Court, in its increasingly famous line, stated that "[c]onfrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well."
In other words, a laboratory analyst's lack of training is clearly an important factor to be discussed during cross-examination.
The Court also declared that the affidavits contained in the certificate of analysis could not bypass the Confrontation Clause, even if they are admissible under a hearsay exception. Finally, the Court noted that the burden could not be placed upon the defendant to subpoena the analyst at trial and, therefore, the fact that the defendant could havesubpoenaed the analyst was irrelevant to its determination. This is because doing so would shift any adverse effects to the defendant if and when such a witness failed to show at trial. As would be expected, this is impermissible. It does not matter, continued the Court, that the burden on the prosecution may be increased as a result, because the Confrontation Clause cannot be disregarded for convenience.
The Court in Melendez-Diaz therefore concluded that the defendant's rights under the Sixth Amendment had been violated and reversed and remanded the case to be determined in accordance with its opinion.
Now, we will discuss the Pennsylvania case of Commonwealth v. Barton-Martin, where the defendant was charged with two counts of DUI.
At trial, the defendant's attorney objected to the admission of the BAC results based upon a Sixth Amendment Confrontation Clause violation because the Commonwealth had not produced the phlebotomist or the laboratory analyst to testify during the Commonwealth's case-in-chief. Rather, to lay the foundation for the admission of the BAC results against the defendant, the Commonwealth had proffered only the Custodian of Records of the hospital where the legal blood draw was performed. Stated differently, the Commonwealth was simply doing what it had done many times in the past under the theory that such evidence constituted business records which were admissible through the use of a document custodian.
The defendant's objection was overruled, despite the defendant's attorney referencing the then-pending Melendez-Diaz case in the United States Supreme Court. As a result, in an effort to mitigate the damage that had already been done by being prevented from cross-examining the laboratory analyst, the defendant called the laboratory analyst on direct examination.
Ultimately, however, the defendant was convicted on both DUI counts.
This takes us to June 2009, when the aforementioned Melendez-Diaz opinion was issued by the United States Supreme Court. At this time, as previously indicated, the defendant in Commonwealth v. Barton-Martin had already been charged and convicted of two separate counts of DUI.
Following her conviction in the trial court, the defendant appealed to the Superior Court of Pennsylvania. It was during this interim of time from when she was convicted and the date upon which her appeal brief was due that the United States Supreme Court had issued the Melendez-Diaz decision.
On appeal, defendant argued that, pursuant to the recent Melendez-Diaz decision, her Sixth Amendment right to confront the witnesses brought against her was violated by the admission of the laboratory report containing the BAC results into evidence.
This was because neither the laboratory analyst who had performed the legal analysis on her blood nor the phlebotomist who drew her blood were called as Commonwealth witnesses during the Commonwealth's case-in-chief and neither witness was subject to prior cross-examination or, alternately, declared to be unavailable.
On the other hand, the Commonwealth argued on appeal that Melendez-Diaz was not retroactively applicable to the defendant's case. As such, the Commonwealth alleged that Commonwealth v. Kravtonka, which held that the testimony of a custodian of records from the hospital where the legal blood draw was performed does not violate the Confrontation Clause, was directly applicable.
As such, the Commonwealth alleged that the defendant's Confrontation Clause rights were not violated because they had, quite simply, did the same thing as they had many times prior.
The Superior Court's opinion in Barton-Martin contains several substantial determinations whose impact on Pennsylvania DUI law should not be understated. First, the Superior Court determined that the laboratory result constituted testimonial evidence because the defendant's BAC - an essential element of 75 Pa. C.S.A. § 3802(c) - was proven simply by the lab report's admission into evidence. Next, the Superior Court noted that the fact that the defendant called the laboratory technician on direct examination during the defendant's case-in-chief did not negate the lack of confrontation provided to the defendant. In other words, the Superior Court determined that the only way to satisfy the Confrontation Clause for a BAC-based DUI conviction requires the Commonwealth to provide the laboratory analyst as an actual witness to be cross-examined by the defendant unless, of course, the analyst is judicially declared to be unavailable or the defendant had a prior opportunity to cross-examine him or her.
Additionally, the Superior Court determined that Melendez-Diaz was, in fact, retroactively applicable to this case. This determination was reached at oral argument, where the defendant's counsel noted that the United States Supreme Court itself had retroactively applied Melendez-Diaz to its more recent case in Briscoe v. Virginia.
In response, the District Attorney conceded Melendez-Diaz's retroactive applicability to the defendant's case.
As you may imagine, Barton-Martin brings about a long anticipated change for DUI law in Pennsylvania. Obviously, the Court's opinion in Barton-Martin stands in direct conflict with its prior precedent; however, it did not expressly overrule Commonwealth v. Kravtonka.
Nevertheless, Barton-Martin is a huge win for DUI defendants across the Commonwealth and ensures that the Commonwealth can no longer obtain a BAC-based DUI conviction by ex parte out-of-court reports. Rather, for the BAC result to be admitted as evidence, the Commonwealth must at a minimum proffer the laboratory technologist who performed the legal BAC analysis.
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