On November 21, 2013 the California Supreme Court issued a puzzling opinion in a DUI/drunk driving case. Basically, the Court held that a defendant cannot offer expert testimony to challenge the general reliability and accuracy of a breath testing machine in California DUI/drunk driving prosecutions. See full digest of opinion below:
As an attorney representing South Carolina drivers accused of DUI/drunk driving, I would raise the following points and arguments to make sure that South Carolina drivers can always challenge the accuracy and reliability of breath testing machines in DUI cases:
1. §56-5-2935. Right to a Jury Trial.
Notwithstanding any other provision of law, a person charged with a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945 who is being tried in any court of competent jurisdiction in this State must have the right of trial by jury. A person charged with one or more of these offenses shall enjoy the right to a speedy and public trial by an impartial jury, to be fully informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses, documents, or both, and the right to be fully heard in his defense by himself or by his counsel or, by both.
The right to a jury trial for a South Carolina driver accused of DUI/drunk driving is guaranteed by this law. This law also guarantees that a defendant has “the right to be fully heard in his defense by himself or by his counsel or, by both.” Most assuredly the right to be fully heard would include the right to call a properly qualified expert witness to share the inherent flaws of the DataMaster machine with the jury.
2. §56-5-2933. Driving with an unlawful alcohol concentration.
“…(I) A person charged for a violation of Section 56-5-2930 may be prosecuted pursuant to this section if the original testing of the person’s breath or collection of other bodily fluids was performed within two hours of the time of arrest and reasonable suspicion existed to justify the traffic stop. A person may not be prosecuted for both a violation of Section 56-5-2930 and a violation of this section of the same incident. A person who violates the provisions of this section is entitled to a jury trial and is afforded the right to challenge certain factors including the following:
(1) whether or not the person was lawfully arrested or detained;
(2) the period of time between arrest and testing;
(3) whether or not the person was given a written copy of and verbally informed of the rights enumerated in Section 56-5-2950;
(4) whether the person consented to taking a test pursuant to Section 56-5-2950, and whether the:
(a) reported alcohol concentration at the time of testing was eight one hundredths of one percent or more;
(b) individual who administered the test or took samples was qualified pursuant to Section 56-5-2950;
(c) tests administered and samples obtained were conducted pursuant to Section 56-5-2950 and regulations adopted pursuant to Section 56-5-2951(O) and Section 56-5-2953(F); and
(d) machine was working properly.
(J) Nothing contained in this section prohibits the introduction of:
(1) the results of any additional tests of the person’s breath or other bodily fluids;
(2) any evidence that may corroborate or question the validity of the breath or bodily fluid test result including, but not limited to:
(a) evidence of field sobriety tests;
(b) evidence of the amount of alcohol consumed by the person; and
(c) evidence of the person’s driving.
(3) a video recording of the person’s conduct at the incident site and breath testing site taken pursuant to Section 56-5-2953 which is subject to redaction under the South Carolina Rules of Evidence; or
(4) any other evidence of the state of a person’s faculties to drive which would call into question the results of a breath or bodily fluid test.
At trial, a person charged with a violation of this section is allowed to present evidence relating to the factors enumerate above and the totality of the evidence produced at trial may be used by the jury to determine guilt or innocence. A person charge with a violation of this section must be given notice of intent to prosecute under the provisions of this section at least thirty calendar days before his trial date.
Key provisions of the South Carolina “per se” (DUAC) law are as follows: First, a driver charged with a violation of this section is allowed to present evidence relating to the factors above (i.e. was the machine working properly at the time of the test?) Second, a defendant is entitled to introduce “any evidence that may corroborate the validity of the breath test result.” In my opinion, both of these provisions, and the law as a whole, clearly allow a South Carolina driver accused of DUI/drunk driving to proffer a competent expert to highlight the many flaws and assumptions present in the DataMaster machine.
(3) SC Rule of Evidence, 702.
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
The seminal South Carolina case on point regarding the admissibility of expert testimony in criminal cases is State v Jones, 541 S.E.2d 813 (S.C. 2001). The crux of this South Carolina Supreme Court case, as it relates to the admissibility of expert testimony in criminal cases is as follows:
2. Expert Testimony
“A single boot print was found on Pipkin’s bloody kitchen floor. The “steel toe” boots which made the impression, as well as another pair of “high-top” boots, were found in the room appellant rented at Brown’s parents’ home. Brown claimed appellant wore the “steel toe” boots connected to the crime, while he wore the pair of high-top boots also found in the room.
[343 S.C. 572] At trial, the State was permitted to introduce testimony that the “barefoot impressions” left on the “steel toe” boots’ insoles were consistent with the boots having been worn by appellant. Appellant contends this “barefoot insole impression” evidence is not scientifically reliable, and further that SLED agent Derrick who conducted the examination was not a qualified expert. Finally, he argues that even if there exists such a science, and even if Derrick were qualified, the prejudicial impact of the testimony outweighed its probative value. We find this “science” unreliable, and reverse the trial court’s decision to admit this evidence.
Scientific evidence is admissible under Rule 702, SCRE, if the trial judge determines: (1) the evidence will assist the trier of fact; (2) the expert witness is qualified; (3) the underlying science is reliable, applying the factors found in State v. Jones, 273 S.C. 723, 259 S.E.2d 120 (1979); and (4) the probative value of the evidence outweighs its prejudicial effect. State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999). The trial judge’s decision to admit or exclude the evidence is reviewed on appeal under an abuse of discretion standard. Id.
The central thesis of “barefoot insole impression” evidence is that the primary wearer of footwear, over time, begins to leave an impression of the wearer’s foot in the footwear’s insole. Inked impressions of the suspected wearer’s feet, photos of the suspected wearer’s known insoles, and a standing cast of the suspected wearer’s foot are compared to the impressions in the boots, both visually and by using calipers to compare distances between toes and other features among the various exhibits. A Canadian researcher (Kennedy), who testified for the State at trial, is currently conducting a study following R.C.M.P. troopers and their new boots throughout the training process. Kennedy has compared the insole impressions made in some 200 Canadian army boots with the feet of the wearers. He began research in the area in 1989 after earlier work done by Dr. Louise Robbins was discredited. Kennedy testified that different researchers use different
[343 S.C. 573] methods in making these type comparisons, but that he felt his method (the one used by Agent Derrick) was the best. He also testified that he has revised some of his statements, but none of his methods, based on comments received after publication of his peer-reviewed articles.
In conducting the tests here, Agent Derrick relied upon a talk he heard several years earlier, three books, two of which were published before 1989, and a phone conversation with Kennedy.
We agree with appellant that the “scientific” evidence admitted at his trial does not meet the requirements for admissibility, and therefore need not address his contentions that Agent Derrick was not a qualified expert, and that the prejudicial impact of this evidence outweighed whatever probative value it may have had. State v. Council, supra. The Jones reliability factors take into consideration:
(1) the publications and peer reviews of the technique;
(2) prior application of the method to the type of evidence involved in the case;
(3) the quality control procedures used to ensure reliability; and
(4) the consistency of the method with recognized scientific laws and procedures. State v. Council, supra.
The State relies most heavily on Kennedy to establish that there is a science underlying “barefoot insole impressions.” While Kennedy testified that he had published several peer-reviewed articles, he also testified that he was still in the process of collecting data in order to determine which standards were appropriate for comparison purposes. Further, he candidly acknowledged that earlier work in this area had been discredited.
We find the evidence presented here insufficient to meet the Jones’ requirements that: (1) the technique be published and peer-reviewed; (2) the method has been applied to this type evidence; and (3) the method be consistent with recognized scientific laws and proceedings. In our opinion, it is premature to accept that there exists a science of “barefoot insole impressions.”
[343 S.C. 574] An additional issue arises here as the result of the Jones requirement that the quality control procedures used ensure reliability. Neither Agent Derrick nor anyone connected with SLED had ever done this type of test before. Further, Agent Derrick admittedly had not conducted the testing in conformity with SLED’s quality control precautions. The director of the SLED laboratories testified that SLED requires a written protocol on all laboratory procedures, which must be “thoroughly tested to prove their scientific validity, accuracy and repeatability.” Here, there was no written protocol in existence when Agent Derrick conducted his testing, much less one which had been subjected to SLED’s quality control policies.
We find, therefore, that the trial judge erred in permitting expert testimony purporting to demonstrate that “barefoot insole impression” testing revealed appellant’s foot to be consistent with the impression made by the primary wearer of the “steel toe” boot. The admission of this evidence mandates reversal of appellant’s convictions.
In the Vangelder case, the defendant’s proffered expert witness, Dr. Michael P. Hlastala, testified as to his credentials as follows: he is a professor of medicine, physiology, biophysics and bioengineering at the University of Washington. Dr. Hlastala has been studying the physiology of alcohol and the way alcohol is measured in testing procedures for 25 years. He has written more than 400 articles, including approximately 170 peer-reviewed articles and a text book on the subject. Additionally, he has testified in this area in approximately 30 states. Without question, Dr. Hlastala would be received as an expert in the field of breath testing in South Carolina courts.
4. Sixth Amendment, United States Constitution:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.
Below please find an article which I recently authored regarding a defendant’s Sixth Amendment right to confront witnesses relating to laboratory and forensic reports used in DUI/drunk driving prosecutions.
At the conclusion of this year’s session, a splintered Supreme Court authorized the use of laboratory reports during trial without allowing the defendant an opportunity to cross-examine the technician who created the report. Williams v. Illinois 567 U.S. __(2012). This opinion is a slight retreat from recent rulings that broadly interpreted the Sixth Amendment “right of confrontation” in favor of defendants in comparable cases (Crawford v. Washington, 541 U.S. 36, 50 (2004), Melendez-Diaz v. Massachusetts, 557 U.S. 305, 330 (2009),and Bullcoming v. New Mexico, 564 U.S. ____(2011)).
Williams v. Illinois
Justice Samuel Alito, writing for a four-justice plurality, affirmed that the testimony of an expert witness based upon a test that the testifying expert did not personally perform is admissible and does not violate the defendant’s Sixth Amendment rights. The Court held that because the evidence of the third-party test was not offered to prove the truth of the matter asserted (but merely to provide a basis for the conclusions that the expert reached), the prosecution had not infringed on the defendant’s Sixth Amendment right to confront and cross-examine witnesses. The Court’s ruling hinged on the following: First, the government witness testified and concluded that the DNA report in question matched a profile report the state laboratory had previously produced using a sample of Williams’ blood. Second, the government witness proffered was available to the defendant for cross-examination during trial. Accordingly, the Court concluded that the testimony offered did not fall within the bounds of a Confrontation Clause violation because the results were considered (by the testifying witness) for the limited purpose of seeing whether it matched the profile report from the state laboratory. The DNA report was not offered to prove the guilt of the defendant, as Williams was not a suspect at the time the test was conducted.
In Williams, the defendant (Sandy Williams) was convicted of two counts of aggravated criminal sexual assault and one count each of aggravated kidnapping and aggravated robbery in Illinois state court. At the defendant’s bench trial, Sandra Lambatos, a forensic specialist at the Illinois State Police lab, testified that she matched a DNA profile (of the defendant) previously produced by a private laboratory, Cellmark, to a profile the state laboratory produced using a sample of the defendant’s blood. Lambatos testified that Cellmark was an accredited laboratory and that business records showed that the evidence was taken from the victim, sent to Cellmark, and returned. That was the extent of her testimony.
The defense moved to exclude, on Confrontation Clause grounds, Lambatos’ testimony insofar as any reference to the Cellmark report as “hearsay.” The prosecution countered that the defendant’s Confrontation Clause rights were satisfied because he had the opportunity to cross-examine the expert who had testified as to the matching reports. The trial court admitted the evidence and found Williams guilty. Both the Illinois Court of Appeals and the Illinois Supreme Court affirmed the conviction, concluding that Lambatos’ testimony did not violate Williams’ Confrontation Clause rights because Cellmark’s report was not offered into evidence to prove the truth of the matter asserted.
The decision in Williams departs to some degree from the recent Supreme Court rulings referred to by the defense bar as “the trilogy.” However, the plurality in Williams felt that its decision was consistent with both the Melendez-Diaz and Bullcoming opinions (where the forensic reports were introduced for the purpose of proving the truth of what they asserted). Here, Cellmark’s report was considered and admitted for the limited purpose of seeing whether it matched something else, and the relevance of that match was established by independent circumstantial evidence—which showed that the report was based on a sample from the crime scene. Furthermore, the Court specifically noted in Williams that “the forensic reports in Melendez-Diaz and Bullcoming ran afoul of the Confrontation Clause because they were the equivalent of affidavits made for the purpose of proving a particular criminal defendant’s guilt.” In contrast, the Court went on to note in Williams that the primary purpose of the Cellmark report was to catch a dangerous rapist who was still at large, and not to obtain evidence for use against the defendant. Accordingly, there was no “prospect of fabrication” in the Court’s eyes.
Justice Elena Kagan (joined by Justices Ginsburg, Sotomayor, and Scalia) wrote a vigorous dissent, proclaiming, “Under our Confrontation Clause precedents, this is an open-and-shut case.” She found this case to be in the same vein as the trilogy of cases mentioned above where the Court found that in order to satisfy the requirements of the Confrontation Clause, the defendant must have the opportunity to cross-examine the analyst who performed the test. Without such an opportunity, an unreliable report is assumed to be true.
More specifically, the dissent suggests that the DNA profile report produced by an analyst at Cellmark’s laboratory is identical to the report in Bullcoming (and Melendez-Diaz) in “all material respects.” Therefore, Justice Kagan wrote, “under this Court’s prior analysis, the substance of the report could come into evidence only if Williams had a chance to cross-examine the responsible analyst.” However, that is not what happened.
“Instead,” wrote Justice Kagan, “the prosecutor used Sandra Lambatos—a state-employed scientist who had not participated in the testing—as the conduit for this piece of evidence.”
Finally, the dissent disagreed with the plurality’s conclusion that Cellmark’s report was not offered into evidence to prove the truth of the matter asserted, arguing that the “admission of the out-of-court statement in this context has no purpose separate from its truth; the factfinder can do nothing with it except assess its truth and so the credibility of the conclusion it serves to buttress.”
The three primary opinions authored by the United States Supreme Court in the last ten years dealing with a defendant’s Sixth Amendment right to confront the witnesses against him started with the seminal opinion of Crawford v. Washington. Briefly, the facts of the Crawford case are as follows: Michael Crawford stabbed a man that he claimed was trying to rape his wife. During Crawford’s trial in state court, prosecutors played his wife’s tape-recorded statement given to the police describing the stabbing for the jury. The statement contradicted Crawford’s claim that he stabbed the man in defense of his wife. Crawford argued that allowing the jury to hear his wife’s prerecorded statement violated his Sixth Amendment right of confrontation because he was not allowed any opportunity to cross-examine the recording. Citing Ohio v. Roberts, 448 U.S. 56 (1980), the state Supreme Court upheld Crawford’s conviction. Roberts was a 1980 opinion in which the U.S. Supreme Court upheld an Ohio state court conviction where the state was allowed at the trial level to offer the preliminary hearing transcript of a critical witness in lieu of live testimony. The U.S. Supreme Court held that the use of the transcript testimony did not violate the Confrontation Clause because it bore an adequate “indicia of reliability”—and that in such cases, this type of evidence would fall “within a firmly rooted hearsay exception.”
In a unanimous opinion written by Justice Scalia, the Court reversed Crawford’s conviction and ruled that his Sixth Amendment right to confront and cross-examine witnesses against him had been violated. Defendants have the constitutional right to confront witnesses and cross-examine their testimony in criminal prosecutions. This holding directly overruled Roberts. In summary fashion, the Court held that the framers of the Constitution designed the Confrontation Clause to strictly prohibit out-of-court testimony as evidence against a defendant—again, without the benefit of the defendant being allowed to cross-examine the testimony.
In Crawford, Justice Scalia recited a detailed history of the Confrontation Clause. He went on to describe the context in which the framers of the Constitution drafted the clause and gave numerous examples of how American courts have interpreted the clause over the years. Scalia concluded that the Confrontation Clause of the Sixth Amendment applies to any “witnesses” against the defendant, meaning any person, statement, or document whose purpose was to “bear testimony.” The Crawford opinion has been consistently viewed as a bellwether case for defendant’s rights. It had an immediate and far-reaching effect in criminal courts nationwide. Previously, prosecutors had been enjoying a fair amount of leeway involving the use of affidavits and lab reports (where they gained admission through various exceptions to the hearsay rule). In Crawford, the Court expressly held that any out-of-court statement that was “testimonial in nature” was not admissible unless the defendant had the opportunity to cross-examine the declarant.
In Melendez-Diaz v. Massachusetts, the Court applied the standard as set forth in Crawford to a state forensic laboratory report. Briefly, in the prosecution of a drug case against Melendez-Diaz, the trial court allowed lab reports identifying the substance as cocaine without any testimony from the analyst. In a 5–4 decision, the Supreme Court held that because the lab report was prepared for use in a criminal prosecution, the Sixth Amendment Confrontation Clause demanded that the defendant be given the right to cross-examine the author of the lab report. As set forth in Crawford , the Supreme Court held that the laboratory report prepared and used in a criminal prosecution was “testimonial in nature,” and that the defendant had a fundamental Sixth Amendment right to confront and cross-examine the analyst who prepared the report prior to it being admissible.
In 2010, the Court revisited the Crawford and Melendez-Diaz opinions in a case involving a laboratory report of a blood alcohol reading in a DUI case. Once again, and in a 5–4 decision, the Court held a line that it created in Crawford. In Bullcoming v. New Mexico, the Supreme Court held that the admission of the blood alcohol report without the actual testimony of the person who prepared the report violated Bullcoming’s Sixth Amendment rights. Specifically, Justice Ginsburg stated, “The Confrontation Clause (of the Sixth Amendment) does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification (as to its accuracy), made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform the test. . . .”
The trilogy opinions had a huge impact in helping defendants accused of DUI or drug charges obtain a fair trial where they are allowed to cross-examine the laboratory analyst who performed the examination. Any breath alcohol test, blood alcohol test, or forensic drug examination of any type must be accompanied by the officer or laboratory technician who performed the test before it can be admissible. Critically, this allows a defendant the right to vigorously confront and cross-examine the witness regarding the obtaining, handling, storage, and testing of the sample. In Williams, the Court pares a defendant’s right to confront laboratory test evidence prepared by an unavailable witness. However, the Williams opinion does not appear to infringe upon a defendant’s right of confrontation where the laboratory report offered would be considered “testimonial in nature” and “offered as proof of truth of the matter asserted.”
I believe that it is a clear violation of a defendant’s Sixth Amendment rights to not be allowed to present expert testimony to challenge the general accuracy and reliability of breath testing machines in DUI/drunk driving cases. The Sixth Amendment guarantees a defendant the right to “be confronted with the witnesses against him.” One of the primary “witnesses” against a driver in a DUI/drunk driving case is a breath test result (if the driver took the breathalyzer test). Expert testimony of the type offered in the Vangelder case obviously falls under the protections of the Sixth Amendment.
South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense. Steve is a South Carolina Super Lawyer® in the field of DUI defense. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™. He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell® and a “Superb” ranking with Avvo. He is a frequent lecturer and author on topics related to the defense of DUI charges. He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.