"How recent interpretations of Confrontation Clause and hearsay rules will impact admissibility of Breathalyzer certificates in drunk driving, DUI, DWI, and Driving under the influence prosecutions…"
Court of Appeals of Virginia,
Phillip Lawton GRANT v. COMMONWEALTH of Virginia.
Record No. 0877-08-4.
Sept. 1, 2009.
Background: Defendant was convicted in the Circuit Court, Fairfax County, Bruce D. White, J., of driving while intoxicated. Defendant appealed.
Holdings: The Court of Appeals, Petty, J., held that:
(1) attestation clause in certificate memorializing the results of a blood test was testimonial in nature, and its admission violated the Confrontation Clause, and
(2) admission of certificate in violation of Confrontation Clause was not harmless error, and required reversal.
Reversed and remanded.
Present: FELTON, C.J., and FRANK and PETTY, JJ.
*716 Appellant, Phillip Lawton Grant, challenges his conviction for driving while intoxicated, in violation of Code § 18.2-266. Grant argues that his conviction should be reversed because the certificate of the results of a chemical analysis of his breath indicating his blood alcohol level was admitted into evidence in violation of his Sixth Amendment right to confront witnesses against him.FN1 **86 For the reasons explained below, we agree with Grant and reverse his conviction.
FN1. Grant's question presented on appeal is:
Whether the trial court erred by denying appellant's motion to exclude from evidence, or alternatively to strike from evidence, the certificate of analysis because the Commonwealth failed to comply with appellant's timely “Notice of Defendant's Exercise of Confrontation Rights Pursuant to Va.Code 19.2-187.1.”
While both parties argued that the statutes governing the admissibility of the breath test certificate are Code §§ 19.2-187 and 19.2-187.1, the express statutory authority for the admission of a breath test certificate is set out in Code § 18.2-268.9.Code § 19.2-187 is limited to certificates of analysis prepared by the Division of Consolidated Laboratory Services, the Department of Forensic Science, and certain other enumerated laboratories. Further, Code § 19.2-187.1 only provides for a right by the defendant to examine persons performing analysis pursuant to Code § 19.2-187. It does not appear that the Fairfax County Adult Detention Center is one of the laboratories enumerated in Code § 19.2-187. However, whether the parties and the trial court relied upon the correct statutory scheme addressing the admissibility of the breath test certificate is not before us in this appeal. Therefore, we assume without deciding for the purposes of this opinion that Code § 19.2-187.1 is applicable to this case.
"In Rhode Island, DUI, DWI, Driving Under the Influence, and Drunk Driving cases seem to provide motorists with minimized constitutional protections under the law."
In cases where the police should have recognized that the cause of the apparently intoxicated behavior was not alcohol, but was instead a medical condition from which the subject was suffering, a cause of action may exist against the police for failure to assure that the defendant was immediately delivered to a hospital for medical treatment. Of course, it becomes very important to provide alternate reasons for the suspect’s failure to properly perform standardized field sobriety tests.
In one Federal case, officers had probable cause to arrest motorist at roadblock, and such seizure did not violate his civil rights, where officer received report that possibly intoxicated driver was slumped over steering wheel of vehicle parked on shoulder of interstate, motorist's appearance indicated that he had been drinking, motorist declined to answer officer's questions and drove away without explanation, motorist failed to stop when officer engaged his emergency equipment, bumped motorist's vehicle,and shot out his tires, and motorist swerved to prevent officer from passing him. U.S.C.A. Const.Amend. 4; 42 U.S.C.A. § 1983. Latta v. Keryte, 118 F.3d 693 (10th Cir. 1997). Read More...
"Pursuant to Rhode Island Drunk Driving, DWI and DUI procedures, a driver is entitled to refuse to take a chemical test upon the request of law enforcement."
This blog entry also discusses the application of chemical tests to suspects that are unconscious or in such a medical state that the test is administered for purposes of medical treatment, rather than strictly for law enforcement purposes.
All fifty states and the District of Columbia have enacted statutes authorizing the admission in evidence of the results of chemical intoxication tests. These statutes are commonly referred to as "implied consent laws"; they generally declare that driving is a privilege subject to state licensing, with one of the conditions for obtaining a license that the driver submit to a test for intoxication on request. The police must have probable cause to request a chemical intoxication test. Because of differences in language among the state statutes, it is necessary for counsel to consult his state's statute and to refer to supportive case decisions to ascertain the full rights of his client respecting submission to these tests.
Differences in statutory provisions include such matters as sanction or the lack of sanction for refusal to submit to a test, admissibility as evidence of the fact of refusal to submit to test, the type or types of tests that can be made, whether the police or the defendant can choose the type of test to be administered, the qualifications of the persons who give or supervise the tests, the predicate that must be laid for the introduction of results of the tests, whether the defendant is entitled to his own independent test in addition to the one administered by the police, and whether a dead, unconscious, or disabled person may be tested without permission. Implied consent statutes ordinarily do permit the person tested to have a physician of his own choice administer a chemical intoxication test in addition to the one administered at the direction of the police.
The refusal of a motorist to submit to a chemical intoxication test generally constitutes grounds, under implied consent statutes, for the suspension or revocation of his driver's license. In most states, acquittal of the charge of driving while intoxicated does not preclude revocation or suspension of the motorist's license for refusal to submit to the test. However, the motorist generally has a right to a hearing on the question of the reasonableness of his refusal to submit to the test before his license may be revoked or suspended. Currently, the States of Texas, Wisconsin, Mississippi, and North Carolina do not penalize the driver for refusing to submit to the test if a driving while intoxicated case is dismissed or there was a finding of not guilty. Read More...