Drug and Alcohol Lab Results and the Constitutional Right to Confront Witnesses

The Confrontation Clause, found in the Sixth Amendment of the U.S. Constitution, guarantees the right of a criminal defendant to confront witnesses against them. This has direct implications for lab results subpoenaed in DUI cases under both Georgia and Federal law.

Here's how these laws apply with specific case law citations:

Federal Law:

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) - The U.S. Supreme Court held that affidavits reporting the results of forensic analysis which show that tested substances were, for example, cocaine, are "testimonial," rendering the affiants "witnesses" subject to the defendant's right of confrontation. Thus, analysts who prepare such reports must testify in person unless they are unavailable and the defendant had a prior opportunity for cross-examination.

Bullcoming v. New Mexico, 564 U.S. 647 (2011) - The Court clarified that the Confrontation Clause does not permit the prosecution to introduce the results of a forensic test through the in-court testimony of a scientist who did not sign the certification or personally perform or observe the test reported in the certification. The testifying witness must be the one who performed or observed the test.

Georgia State Law:

Georgia courts follow the federal interpretation of the Con

frontation Clause above, but have carved out numerous exceptions such that the exception has swallowed the Constitution as seen in cases like:

Samuels v. State, 335 Ga. App. 819, 783 SE2d 344 (2016) – Holding that Emergency Room Records of Alcohol intoxication are not testimonial because they are not prepared in anticipation of litigation.

Jacobson v. State, 306 Ga. App. 815, 703 SE2d. 376 (2010)(Intoxilyzer inspection certificates are not testimonial because they were prepared for all prosecutions and not this particular prosecution and so there is no right on confrontation.)

Davenport v. State, 289 Ga. 399, 711 SE2d 699 (2011)(State Administer Breath Test device computer source code is not testimonial because it is written for all DUI prosecutions and not this particular one.)

In Davenport, Justice Nahmias eloquently laid out the Due Process concerns of not being able to confront computer source code:

"Second, by applying the correct "material witness" standard, trial courts may alleviate the due process concerns that may otherwise exist (but are not well presented in this appeal) when the State enacts a statutory scheme in which:         (1) evidence usually determinative of the defendant's guilt (e.g., blood alcohol content in a per se DUI prosecution) is tested and reported, not by forensic experts who testify and face cross-examination on the reliability of their methods and the accuracy of their results, but rather by a machine (e.g., the Intoxilyzer 5000) that takes in a specimen from the defendant and, through internal mechanisms and computer code, generates a test report;                                                   (2) The machine's computer code is unavailable to the defendant through discovery or compulsory process because the State avoids possessing it in Georgia;                                                                                                                                 (3) The machine's test result is admissible at trial through a witness who can say that he was qualified to operate the machine and it operated as designed (see, e.g., OCGA § 40-6-392(a)), but who has no knowledge about whether the machine was in fact designed to produce reliable and accurate results under the circumstances presented; and            (4) The machine uses up the specimen, with nothing maintained for later confirmation or independent testing."

Justice Scalia in his dissent also eloquently stated the arguement on business record exceptions:

These are nuanced arguments requiring the analytical skills of an experienced DUI lawyer and not cookie cutter or paint by numbers lawyering.

Practical Application in DUI Cases:

In DUI cases involving lab results from a hospital or crime lab:

The prosecution needs to either have the analyst testify as per Melendez-Diaz and Bullcoming, or Show that the analyst is unavailable with a prior opportunity for cross-examination by the defendant, or Demonstrate that the lab report was not created for the primary purpose of prosecution but for medical treatment, which falls outside the typical application of the Confrontation Clause (see Michigan v. Bryant, 562 U.S. 344 (2011) for context on what might constitute non-testimonial statements).

If the lab results were indeed for medical treatment and not for law enforcement, there might be an argument for their admissibility without confrontation, but this is narrowly interpreted and requires foundational evidence to establish that it is an accurate business record and was recorded in the regular course of business contemporaneously with the administration of the test, especially in criminal law contexts like DUI. This begs the question: If medical records are not per se forensic but our only diagnostic (meaning they require the diagnosis of a doctor) can they be considered reliable without being interpreted by a medical doctor?

Given these standards, if the lab results from a hospital are to be used against you in a DUI case in Georgia, you would generally have the right to confront the individual who conducted or directly supervised the test under both the Georgia and Federal Constitutions or to at least scrutinized the accuracy and creation of the hospital test result. If this right is not honored, the evidence might be challenged, potentially leading to its exclusion. However, the exact application would require examination of the specifics of your case, including the purpose and documentation of the test. Consulting with a legal professional familiar with Georgia DUI law would be advisable to navigate these nuances.