Robert McCartney: A Valid Legal Theory That Crumbles With Each DUI Arrest

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By Robert McCartney
Thursday, July 23, 2009

Drunk drivers and potheads, rejoice. If you get caught, the Supreme Court has made it easier for you to beat the rap, at least in Virginia and maybe soon elsewhere in the region.

That pesky Bill of Rights is creating hurdles for the police again. The justices ruled 5 to 4 last month that prosecutors can't make their cases by relying just on a document like a lab report (yes, it was marijuana) or breath test printout (he blew twice the legal limit, your honor). Now, the state must also make available as witnesses the lab technicians, breathalyzer operators or other individuals who prepared the documents.

The court said that's necessary because of the Sixth Amendment, which guarantees defendants' rights to confront their accusers at trial. The argument boils down to "You can't cross-examine a machine." The ruling is right in theory but really wrong in practice.

On the bright side, the decision shines a light on the problems created by the assembly-line justice that our society uses to deal with drunken driving and marijuana use. These two offenses dominate our courts, partly because other institutions such as the family, school system and religious institutions have proved incapable of handling them effectively. The courts rely so much on the mechanical tests, which the court now dislikes, in large part to save money.

On the other hand, the ruling is going to force a lot of costly changes with little practical long-term benefit. It will require new laws and court procedures, and cost a lot of money to hire and train additional forensic technicians and other employees, to make it work.

Worse, it hands a new weapon to defense lawyers that's going to benefit them mostly in battles over procedure rather than justice. Because the state won't be able to produce witnesses in many cases, defense lawyers already are saying they expect to win more acquittals at trial. More to the point, they expect to get their clients shorter jail sentences, fewer driver's license suspensions and less punishment generally in the plea bargains that settle the vast majority of these cases.

The ruling has already led to scores of postponed cases and some outright drunken driving acquittals in Fairfax County, a high-volume district where it's impractical at present to get lab analysts or technicians to appear at every case. Gov. Timothy M. Kaine (D) on Wednesday called a special one-day session of the Virginia legislature for Aug. 19 to address the issue.

By contrast, the impact has been minimal in the District and Maryland. The District has been making witnesses available since 2006, and Maryland has a law enabling prosecutors to invite the defense to effectively accept the use of documents alone before the trial starts.

The impact could mushroom, though, and affect more jurisdictions and more kinds of cases. Two Fairfax judges have ruled in DWI cases that the prosecutor had to make available not only the operator who performed the breath test but also the technician who calibrated the machine or certified it as part of routine maintenance every six months. Defense attorneys are also hoping that they could start requiring police to make available the technicians who calibrate radar guns or other equipment used to catch speeders.

"Everything from speeding to murder is affected by this," Fairfax County Commonwealth's Attorney Raymond F. Morrogh said. "Nobody's going to have their rights protected more. It's just going to be a game of 'Can we get the lab techs here?' "

Much of the burden in Virginia will fall on the state's Department of Forensic Science, which does the labwork to prove that that green powder was in fact weed and that the defendant's blood alcohol level was in fact above the legal limit. The drug section gets about 32,000 cases a year and is asked to testify in person in what it calls "an extremely low percentage." If its 43 examiners had to testify in just half the cases, that'd be 372 court appearances each a year -- leaving not much time for conducting the labwork.

The court case, called Melendez-Diaz v. Massachusetts, was noteworthy in several ways. First, the ruling was written by conservative Justice Antonin Scalia for an unusual majority including one other conservative and three liberals. Scalia's critics might be surprised that he took the lead in helping criminal defendants, but give the man his due: He's always said he's a strict constructionist who just wants to interpret the Constitution as it's written. The Sixth Amendment says, "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." Scalia also wrote the landmark ruling, Crawford v. Washington, in 2004, on which Melendez is based.

The dissenters in Melendez, led by Justice Anthony M. Kennedy, argued forcefully that the decision risks overburdening the state. They also suggested that the court ought to take into account technical advances since the 18th century.

Stephen Saltzburg, professor of criminal law and procedure at George Washington University, said Scalia was right to say that scientific tests are a kind of testimony that defenders need to be able to challenge. But he added that the dissenters "had a very strong argument that perhaps there could be an exception for these highly reliable mechanical tests that didn't exist when the framers wrote the Sixth Amendment."

WATCH THIS BATTLE

The move by Mayor Adrian M. Fenty (D) to delete $325,000 from the city budget for an independent evaluation of school reforms is a challenge to the strong desire of D.C. Council Chairman Vincent C. Gray (D) to have the council exercise oversight over Fenty's signature program. Whoever comes out on top regarding this outside review will have an edge in the jockeying leading up to a possible Gray candidacy for mayor next year.


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