USING THE CONFRONTATION CLAUSE TO WIN DUI CASES

by Donald J. Ramsell

©2005

The old days of proving up a breath alcohol test by way of introducing the logbook only, as a ‘public record’ exception to the hearsay rule, are likely over due to the recent U.S. Supreme Court case of Crawford v. Washington ___ U.S. ____, 124 S.Ct. 1354 (2004). There, the Court held that the Right of Confrontation prohibits the government from using testimonial out-of-court statements against an accused where the maker of the statement is not subject to cross-examination. An entry in a breathalyzer logbook, certifying that the instrument was inspected and found accurate on previous dates, falls squarely within the Confrontation Clause’s clutches.

The Crawford Court reasoned that history supports two principles. (1) First, the principal evil at which the Clause was directed was the civil-law mode of criminal procedure, particularly the use of ex parte examinations as evidence against the accused. The Clause's primary object is testimonial hearsay evidence. The Court found that, without doubt, interrogations by law enforcement officers fall squarely within that class. In English common law, the usual ‘interrogators’ were often Justices of the Peace, the high court noted. (2) Second, the Framers of our Constitution would not have allowed admission of testimonial statements of a witness who did not appear at trial unless (a) he or she was unavailable to testify and (b) the defendant (and his legal counsel) had a prior opportunity for cross-examination.

The Crawford Court’s primary focus was on determination of whether or not the proffered evidence was "testimonial" in nature. In looking at the various options the Court indicated that ‘various formulations of this core class of ‘testimonial’ statements exist’ and the proceeds to examine several of them.

Citing from the brief for petitioner, the Crawford Court suggested one possible definition: "ex parte in-court testimony or its functional equivalent -- that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,".

Then, citing from the brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae the Crawford Court suggested a second and slightly broader definition: ‘extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions" and "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"

The Crawford Court concluded that "these formulations all share a common nucleus and then define the Clause's coverage at various levels of abstraction around it. Regardless of the precise articulation, some statements qualify under any definition -- for example, ex parte testimony at a preliminary hearing."

From this analysis the Crawford Court set forth its new rule of exclusion - the presumptive inadmissibility of "testimonial" statements that were not cross-examined by the defendant:

"[T]he Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination. The text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts. Rather, the "right . . . to be confronted with the witnesses against him," Amdt. 6, is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding."

A breathalyzer logbook is created and prepared peculiarly for one purpose: the prosecution of DUI cases. Obviously, the Illinois State Police breath alcohol technician (inspector) who examines and certifies these instruments for accuracy completes hes written ‘certification’ knowing that it’s intended purpose is for later use at trial, ala Crawford.

So far, only one court has addressed the Crawford holding in a DUI setting. In City of Las Vegas v. Walsh, 120 Nev. Adv. Op. No. 44 (Decided June 11, 2004), the Supreme Court of Nevada in a DUI case ruled that an affidavit of compliance for a blood test, made pursuant to a state statute, was entered in violation of defendant’s Right of Confrontation, citing to Crawford. This case, disallowing the use of affidavits to establish the foundation necessary for introduction of a blood test, closely resembles the Illinois practice which pre-dates Crawford.

Practically, the Crawford objection to the foundation and introduction of a breath test should not take place prior to trial, but rather should be raised during trial, when the State seeks to introduce any portion of the logbook or regarding the accuracy testing on the breathalyzer instrument. Without the inspector present, such evidence is clearly incapable of being confronted, and the maker of the statements is unable to be cross-examined.

Any defense attorney practicing in the DUI area should be very familiar with Crawford, and keep a copy in hand for the judge. Until someone declares yet another exception to the Constitution for DUI cases, this new U.S. Supreme Court decision is extremely important in the DUI field.