As discussed previously in this space, we have been eagerly awaiting the Supreme Court’s decision in Mitchell v. Wisconsin. The Court set out to determine whether Wisconsin’s Implied Consent statute requires police to obtain a search warrant before getting a blood sample from an unconscious DUI suspect. The state of Wisconsin argued that Mitchell, through the state’s Implied Consent statute, had already consented to the blood draw, thereby removing the requirement for a warrant. Alternatively, they argued this should simply be viewed as an exercise of the State’s power to imposes conditions on a person’s privilege to operate a vehicle on Wisconsin’s roads.
Brynn Campbell was involved in a head on-crash which killed the 83-year-old woman driving the other car. Campbell was taken to the hospital, and hospital staff performed a urine test. Although Campbell showed no obvious signs of impairment, a police officer went to the hospital and asked the nurse for the urine test results. The results showed Campbell’s alcohol level was well over the limit, according to the Global News. The officer then obtained a search warrant to obtain Campbell’s urine samples and have them tested. Campbell was charged with vehicular homicide. She was acquitted by the trial court, and the prosecution appealed.
Just as Hollywood has produced some good movies in trilogies, the United States Supreme Court has produced some good case law in trilogies. The Court addressed the right to confront crime lab analysts with the trinity of Bullcoming, Melendez-Diaz and Williams. On the issue of the need for a warrant to draw blood from a DUI suspect, two-thirds of the triad have been completed: McNeely and Birchfield. The triumvirate is about to be consummated with Mitchell v. Wisconsin.
The last post in this blog described how crime lab reports are used in Ohio DUI / OVI cases. In a nutshell: a lab technician issues a report identifying the quantity of alcohol or drugs in a person’s blood or urine, and that report is given to the prosecutor. Ohio legislation requires the prosecutor to provide the report to the defense attorney. Ohio legislation, however, is not the only law impacting the use of these reports. The Constitutions of Ohio and the United States also provide limitations on the use of crime lab reports in Ohio DUI / OVI cases.
Defendants’ Confrontation Rights
In a criminal prosecution, defendants have the right to confront the witnesses against them. This right is guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution. Confrontation rights clearly apply to statements a witness makes during a trial: the defendant cross-examines that witness at the trial. But what about statements made by a witness before the trial?
The United States Supreme Court addressed this question in Crawford v. Washington (2004). In this case, the Court held confrontation rights apply to out-of-court statements which are “testimonial” in nature. A statement is “testimonial” if an objective person would reasonably believe the statement would be available for use at a later trial. For example, if a person makes a report to the police, that person’s statements to the police would be considered “testimonial”. According to Crawford, testimonial statements cannot be used in a criminal trial unless the accused has the opportunity to cross-examine the person who made the testimonial statement.
Today’s report regarding the conduct of a forensic scientist employed by the state of Ohio demonstrates the danger of the government enforcing laws without effective checks and balances. Forensic scientist G. Michele Yezzo worked for over 30 years as a laboratory technician for the Ohio Bureau of Criminal Investigation (BCI). During that time, she analyzed evidence in criminal cases and testified in court regarding those analyses. The feature story in The Columbus Dispatch says she now, “stands accused of slanting evidence to help cops and prosecutors build their cases.”
According to the newspaper report, the BCI employee stretched the truth in her analyses to satisfy law enforcement. She even reportedly went so far as asking police officers “What do you need the evidence to say?” Her work as a government scientist led to hundreds of criminal convictions, including serious cases involving murder and rape. This forensic scientist’s lack of credibility calls many of those convictions into question. It also brings attention to the issue of forensic testing in Ohio DUI/OVI cases.
In Ohio OVI cases, forensic testing at crime labs is used to detect and measure alcohol and drugs in blood and urine samples. If a driver is arrested and the officer suspects the driver is under the influence of alcohol and/or drugs of abuse, the officer asks the driver to submit a sample of breath, blood or urine. Breath samples are analyzed on-the-spot by a breath-testing machine. Blood and urine samples are sent to a crime lab for analysis.
Last week, the United States Supreme Court released a decision in a trio of cases involving DUI refusal laws. A previous article in this blog gives a preview of the cases. To decide the outcomes of those cases, the court analyzes whether search warrants are required before law enforcement officers can administer breath tests and blood tests. Based on that analysis, the Court decides whether states can make it illegal to refuse chemical tests in DUI cases. The Court’s decision will impact Ohio DUI/OVI cases.
After considering 13 cases involving criminal refusal laws, the Court chose these three cases: Beylund v. Levi, Bernard v. Minnesota, and Birchfield v. North Dakota. These three cases were apparently chosen because they have three varying scenarios. Beylund claimed his consent to a blood test was coerced because he was told he would be punished for refusing the test. Bernard challenged his conviction for refusing a breath test. Birchfield argued his conviction for refusing a blood test was unconstitutional. The Court issued one opinion for all three cases under the caption of Birchfield v. North Dakota.
The Birchfield opinion analyzes the Fourth Amendment issues. The Court confirms that both breath tests and blood tests are ‘searches’ within the meaning of the Fourth Amendment. Fourth Amendment law presumes a warrantless search is unreasonable. Accordingly, for a law enforcement officer to administer a blood test or a breath test, there must be a search warrant or a recognized exception to the search warrant requirement.
When a person is arrested for DUI/OVI in Ohio, the arresting officer typically asks the person to submit to a breath, blood or urine test. For a test result to be admissible in court, the test must be administered in compliance with regulations issued by the Ohio Department of Health. One regulation requires refrigeration of blood and urine samples, and that regulation was the subject of a recent case decided by the Ohio Supreme Court.
The case is State v. Baker. In Baker, the defendant was driving a vehicle and was involved in an accident with a pedestrian. A police officer administered field sobriety tests and obtained a sample of the defendant’s blood. The blood sample was placed in the officer’s cruiser for four hours and ten minutes and then mailed to a crime lab. At the crime lab, the blood sample was tested, and the result was .095 grams of alcohol per one hundred milliliters of blood.
The defendant filed a motion to suppress the blood test result because the blood sample was not refrigerated in accordance with the Ohio Department of Health regulations. The trial court granted the defendant’s motion, and the court of appeals affirmed the trial court’s decision. The prosecution appealed to the Ohio Supreme Court.
Last week, I completed a short course in gas chromatography. Completing the course reminded me of what Stephen Covey used to say: “To know and not to do is really not to know.” He is so right. It’s one thing to know the law of blood and urine testing. It’s a very different thing to know the science of blood and urine testing. To know the science, you have to do the science, and lawyers typically do not have the opportunity to do the science. Now, however, lawyers get to do the science of gas chromatography in a short course presented by the American Chemical Society.
The course, Forensic Chromatography Theory and Practice, is held in Chicago at the Axion Analytical Laboratories & Training Institute. Axion is the training arm for the American Chemical Society. The president of Axion, Lee Polite, Ph.D., is a leading authority in chromatography and serves as the primary instructor for the course.
The 40-hour course consists of both lectures and labs. The lectures feature analogies which make chemistry understandable to even the least scientific lawyers. During the lectures, participants learn the scientific principles underlying the operation of the gas chromatograph. They also learn the parts of the instrument and the multitude of variables which must be set correctly for the instrument to produce an accurate result.
The labs are hands-on. Class participants run tests with known and unknown substances and learn to interpret the printed chromatograms. Students manipulate testing conditions to understand how those conditions affect results. Class participants also calibrate the instrument, use the associated software to program a calibration curve, and even take apart the injectors and columns.