DWI Cases After Melendez-Diaz

The Supreme Court’s recent decision in Melendez-Diaz v. Massachusetts, holding that the “confrontation clause” of the U.S. Constitution requires that the accused have the right to confront the technician who certified that a seized substance was cocaine, is being widely predicted as potentially wrecking havoc with criminal prosecutions across the country. Whether this precedent will apply to cases such as driving while intoxicated prosecutions is unclear at this point, and is being currently being debated among lawyers and judges who handle such mattes.

In Melendez-Diaz, the defendant was convicted of distribution of a controlled dangerous substance. At his trial, the prosecutors were allowed to introduce documents that certified that a technician had tested a powder seized from the defendant, and it was found to be cocaine. The defense attorney had objected to the documents being admitted against his client without the technician who signed the certification being called as a witness so that he could be cross-examined on such things as the manner in which the testing was done and other facts that led to the conclusion that the substance was an illegal drug.

Writing for the majority, Justice Scalia said that such a document was a statement that was the equivalent of testimony, that is a “solemn declaration or affirmation made for the purpose of establishing or proving some fact.” The Sixth Amendment to the Constitution includes the right of a criminal defendant “to be confronted with the witnesses against him.” Case law over the years has held that this includes the right to be present in court when a witness testifies, to hear the testimony, and to cross-examine the witness. Without a showing that the defendant had such a right, the majority held that the documents could not be used against him.

Just how far this holding goes is a matter of interpretation. In DWI cases, for example, the State often introduces evidence of blood alcohol or breathalyzer tests, including written certification by technicians that the equipment used to perform or analyze these tests was working properly. Anticipating this question, Justice Scalia noted that certifications about equipment may very well qualify as “non-testimonial records” that do not require a witness in court. The dissent questioned where the line is drawn between testimonial and non-testimonial evidence.

Maryland, like a number of other states, has a “notice and demand” statute in DWI cases. The law requires the State to provide written notice at least 30 days before trial whether the prosecution intends to offer into evidence results of laboratory analysis indicating that the defendant was under the influence of alcohol or drugs. The defense then can file a written demand no later than 20 days before trial, if it wants the persons who analyzed the tests to appear in person to testify. Judge Scalia referred to such laws in predicting that the Melendez-Diaz decision would not unduly disrupt criminal cases across the country.

There will undoubtedly be test cases sooner rather than later as to how far this case reaches, and it remains to be seen how far the courts will extend the right to confrontation.