A U.S. Supreme Court ruling this summer in a New Mexico drunken-driving case is expected to put more pressure on state laboratories that test suspects' blood alcohol content and DNA, officials say.

The ruling also could give fuel to opponents of photo-enforcement vans and red-light cameras who argue that such programs are unconstitutional.

In a 5-4 decision announced June 23, the high court said the U.S. Constitution doesn't allow prosecutors to introduce laboratory test results through testimony by an analyst who didn't perform or observe the testing.

"The accused's right is to be confronted with the analyst who made the certification," Justice Ruth Bader Ginsburg wrote in her opinion for the court.

That means the state can't put a surrogate witness on the stand unless the original analyst is unavailable and the accused had a prior opportunity to confront that analyst.

Such testimony can be crucial to the outcome of a case, said Susan Roth, the appellate public defender who represented Donald Bullcoming in the appeal of his 2005 drunken-driving conviction. "Science is not infallible," Roth said. "Scientists are not infallible. And a criminal defendant has the right to cross-examine a scientist who comes up with a fact used against him in a criminal trial."

Ginsburg's opinion also acknowledged the possibility of error in a scientific report — and therefore the defendant's right to question the preparer. She noted a recent study disclosed that a Colorado laboratory had produced false high BAC readings for 206 defendants.

At Bullcoming's DWI trial in Farmington, the prosecutor called to the witness stand an analyst with the Department of Health who admitted under cross-examination that he had not observed Bullcoming's BAC test and that the original analyst was on unpaid leave for reasons that are not part of the record.

The trial court later admitted the forensic report as a business record. Bullcoming's conviction was upheld by the New Mexico Court of Appeals and the New Mexico Supreme Court. The U.S. Supreme Court agreed last year to review the ruling.

The New Mexico case is the third in a series of cases, beginning with Crawford v. Washington in 2004, that have strengthened a defendant's right to confront his accuser.

Impact on the state's labs

While the decision is considered good for criminal defendants, it could be hard on the staffs of forensic laboratories called to court, experts warn.

The state Department of Health's Scientific Laboratory Division, which tests blood for alcohol and drugs, already has three vacancies for analysts and is struggling to complete tests in a timely manner.

Elizabeth Trickey, the department's assistant general counsel, said, "We're not entirely sure how great the impact will be, although we do anticipate the number of subpoenas for analysts to testify will continue to increase."

Between 2008 and 2010, Trickey said, the number of subpoenas of lab analysts has gone up 71 percent — to 1,617 last year from 996 in 2008.

As of June 28, the lab had received 996 subpoenas, she said.

Last year, the Scientific Laboratory Division conducted blood tests in 2,955 DWI cases. By June 28, the number for 2011 was 1,353.

The lab has five analysts working on alcohol testing and preliminary drug screening. Three of them are full-time analysts, one is a supervisor and one is a program manager and case reviewer.

For drug confirmation, there are seven analysts, four of whom are full-time. Two are supervisors and one is a program manager.

The scientific lab has eight people qualified as expert witnesses on alcohol tests and four for drugs, according to Trickey.

And the lab is understaffed. Of the three vacancies, one is in alcohol testing and two are in drug confirmation.

At more than 121,000 square miles and some 350 miles across (both length and width), New Mexico is the fifth largest state in the union. "We only have so many analysts for alcohol testing and preliminary drug testing. The time analysts spend traveling to and from trials and waiting to testify is time they're not doing the testing, time out of the lab," Trickey said.

The problem would be compounded if the decision means everyone from the lab involved in the test must testify on the results. Five people, for example, signed the Bullcoming report, including a nurse and a supervisor. "The court didn't say everyone who handled the test must appear, but it didn't offer a lot of guidance, either," Trickey said.

Alfred Walker, an assistant city attorney who has had to dismiss some cases because of delays getting test results from the Scientific Laboratory Division, said, "I anticipate there's going to be a bigger backlog at the Scientific Laboratory Division because the analyst who actually performs the test has to testify in court about it. That presents scheduling problems, and I understand they're down several employees."

And because of the Bullcoming ruling, he added, calling an analyst to testify might become the "standard of care" for a defense attorney in a case involving scientific evidence.

Department of Public Safety Forensic Laboratory Director Noreen Purcell said, "I've seen the stories of doom and gloom. I'm not sure it's going to be that bad. But it's going to be tricky, and we're going to keep our eye on it."

The 25 testifying scientists from the three crime labs — in Santa Fe, Las Cruces and Hobbs — travel all over the state, giving results of DNA, fingerprint, firearms and other types of tests, Purcell said.

"We have used surrogates," she acknowledged. "So, if that's no longer allowable, we're going to have to figure out how to accommodate this ruling."

One accommodation under consideration is expanding the use of video testimony, which allows an analyst who conducted a test to testify on the results while sitting in his office rather than traveling to a courtroom three hours away.

Purcell said the crime labs routinely use video technology for lab meetings and on two occasions have used the equipment in lieu of appearing in court to testify. She said Judge Thomas J. Hynes of Farmington is an advocate of video testimony, but not all judges are fans.

"It may be a future trend," she said, because, after all, "We are in the 21st century."

"I think it's a good idea," said Walker, the attorney, "although I'm not sure how the courts are going to view that as far as comporting with the (Constitution's) Confrontation Clause." Some courts have allowed children or sex-abuse victims to testify by video, but not all, he said.

Analyst testimony is less critical in Municipal Court bench trials. "There's nothing to be gained by dragging someone in because the judge is going to give the same weight to the testimony," Walker said.

The attorney also is in favor of notice-and-demand rules, which would require the defense to announce by a certain deadline that it wants to subpoena an analyst. (This also could allow the lab to test a blood sample a second time, using a reserved portion of blood, provided the request was made within the six months or so before the blood sample degrades.) A bill establishing such a rule might be proposed to the Legislature next year.

"At the beginning, every defense attorney will demand an analyst's testimony. But the hope is that after a period of time, that will shake out and the defense will look at a report, know there is no way to challenge it and say, 'let's talk about a plea,' " Walker said.

The financial and staffing burden these decisions put on the state has been exaggerated, said Roth, Bullcoming's public defender.

"Many other states have been making sure lab analysts take the stand, and it hasn't brought down their crime labs. It's working," she said. "Defense attorneys don't want to put analysts on the stand in every case. The only time they want to put one on is if they feel there has been an error in the analysis."

Chief Deputy District Attorney Doug Couleur said he didn't anticipate much change because scheduling the testimony of all kinds of experts — from those at the state's forensic labs to an accident reconstructionist from Chicago — has always been challenging.

"When I'm involved in cases, these are the issues we have to schedule around, but they are the general issues in any criminal case," he said. However, Couleur added, "It gets more complicated when you have understaffing at the Scientific Laboratory Division."

Supreme Court successes

The odds are heavily against petitioners seeking review of a decision by the U.S. Supreme Court. Each year, there are more than 7,000 petitions, and the court only issues full opinions in about 75 cases.

This is Roth's second case to reach the high court — and her second win.

In 2007, she scored her first success in New Mexico v. Frawley. In that case, the court said a statute allowing a judge to increase a defendant's sentence after finding aggravating circumstances in the offense or the offender violates a defendant's right to a jury trial under the Sixth and 14th Amendments to the Constitution. The case was vacated and remanded, but there was no oral argument.

This time, the court agreed to hold oral argument. Roth chose Jeffrey Fisher of Stanford Law School's Supreme Court Litigation Clinic to present it.

Roth said the legal team prepared by staging mock oral arguments with lawyers from both The University of New Mexico and Georgetown Law School.

Fisher and New Mexico Attorney General Gary King, who argued for the state, were repeatedly interrupted by the justices — as is typical — making it difficult to determine how the justices would vote at the conference in which they reached a decision.

While it's always risky to predict what the court will do, Roth said when the U.S. Supreme Court agrees to hear a case from a state supreme court, it is usually because a significant number of justices disagree with the finding. "I had a good feeling," she said.

Antonin Scalia and Clarence Thomas both love the Confrontation Clause, and she figured they'd be on the side of the defendant in the Bullcoming case. Both Sonia Sotomayor (a former prosecutor) and Elena Kagan were unknowns.

As the end of the Supreme Court session approached, Roth noticed that Ginsburg, a member of the court's liberal wing, had not written as many opinions as the other justices. Roth was guessing Ginsburg would be the author of the Bullcoming decision as a member of the majority.

For Roth, who recently retired after 21 years as a public defender, the timing was perfect. "This was good way to (go) out," she said. "For an attorney, this is as high as you can go."

Contact Anne Constable at 986-3022 or aconstable@sfnewmexican.com.



BULLCOMING V. NEW MEXICO

Donald Bullcoming was arrested in Farmington in August 2005 after rear-ending a pickup stopped at an intersection and trying to run away. When he refused a breath alcohol test, the officer obtained a warrant to take his blood. Curtis Caylor, an analyst at the Scientific Laboratory Division of the state Department of Health, tested the sample using a gas chromatograph machine and determined that Bullcoming had a blood alcohol content of 0.21, a level that satisfied the state's drunken-driving statute and qualified as aggravated DWI.

At the time of the jury trial in Farmington, Caylor was on unpaid leave, for unspecified reasons, and another analyst who did not conduct the test testified in court. The defense objected, but the court overruled and admitted the report as a business record. While the appeal was pending before the New Mexico Supreme Court, the U.S. Supreme Court issued its ruling in Melendez-Diaz v. Massachusetts, a 2009 case that held that authors of forensic reports are "witnesses" under the Sixth Amendment and subject to cross-examination.

The state Supreme Court acknowledged the report in Bullcoming qualified as testimonial evidence under Melendez-Diaz (rather than a business record), but concluded the report's admission didn't violate the Confrontation Clause because Caylor was a "mere scrivener" who simply transcribed the results, and the surrogate witness qualified as an expert on the Scientific Laboratory Division procedures. It affirmed Bullcoming's conviction, setting the stage for defeat in the U.S. Supreme Court.

Bullcoming served his sentence and moved to Oklahoma.