Olympia DUI Lawyer Blog

The US Supreme Court's recent ruling in Melendez-Diaz v. Massachusetts that prosecutors must call lab chemists to testify in order to admit that chemist's lab reports has played out interestingly in courts throughout the nation. Defense is asking the courts to apply this rule to other less obvious forms of testimony by arguing that the Melendez-Diaz rule not only applies to scientist who create reports when testing substances in drug and DUI charges, but also also to employees who create documentation that is used in litigation. For example, when employees at department of licensing create reports indicating whether or not a defendant had a suspended license at the time he or she was pulled over.

But is the ruling in danger? Among the 5 majority is Justice Souter, who is soon to be replaced most likely by Judge Sotomayor if confirmed. Sotomayor, who though nominated by a democratic President has demonstrated a rather conservative record on criminal law issues, may come down on the other side of the fence with regards to this issue. That, combined with a rather scathing dissent in Melendez-Diaz suggests that this ruling may not be very long-lived. Indeed, the Court announced that next term, it will review the case of Briscoe et al., v. Virginia (07-11191). The issue in Briscoe is whether a defendant's right to confront witnesses is violated when the state presents a report without live testimony of the person who created that report, but notifies defense who that analyst is so it can call that analyst in its case in chief. This issue was rather clearly decided in Melendez-Diaz, with the court ruling that the state has to call such a witness. As such, it makes sense that the only reason the Justices would review this case next term is if they anticipate a ruling that either limits or overrules Melendez-Diaz entirely.

The US Supreme Court ruled last week in Melendez-Diaz v. Massachusetts that, absent stipulation by the defendant, prosecutors must call lab chemists to testify in order to admit that chemist's lab reports. Thus, rather than just admitting a document stating a certain substance is an identified drug, prosecutors must call to the stand the chemist who made that determination so the defendant is permitted to "weed out not only the fraudulent analyst, but the incompetent one as well." Melendez-Diaz further defines the right to confront those who testify against a defendant, as laid out in the 6th Amendment and in the seminal US Supreme Court ruling Crawford v. Washington, a case that originated in Thurston County Superior Court. Justice Scalia authored the Melendez-Diaz opinion, joined by Brennan, Thomas, Ginsburg, and Souter. Justice Kennedy wrote a rather scathing dissent, joined by Chief Justice Roberts, Alito, and Stevens, who is thought to be one of the more liberal members of the court.

Interestingly, the 5-4 breakdown in Melendez- Diaz is identical to that in the recent decision of Arizona v. Gant, in which the Court held that in order for an officer to search a vehicle incident to arrest, he or she must either face an actual and continuing threat to safety, or must have the need to search for evidence relating to the original criminal violation. Gant dramatically redefined the 4th Amendment protections afforded to drivers and occupants of vehicles. Prior to Gant, it was commonplace for officers to pullover and cite defendants for driving with a suspended license, then briefly detain defendants in the back of their patrol cars. During this time, the officers would search the vehicle for contraband of any kind, including drugs, drug paraphernalia and illegal weapons. As driving with a suspended license does not typically yield any sort of evidentiary traces within a vehicle, officers will now only be able to search vehicles after violation of this law only if they can establish an actual and continuing threat to safety.

Though the 4th Amendment protections from federal intrusion are extended to State by the 14th Amendment, the federal protections are a floor rather than ceiling. States are permitted to enhance constitutional protections within their own legislature. Indeed, The Washington State Constitution, in Article 1 Section 7 provides greater protection than its federal counterpart as it is "not limited to subjective expectations of privacy but, more broadly, protects 'those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant." State v. Parker, 139 W.2d 486, 494 (1999). It is notable that even though The Washington State Constitution clearly provides greater protection from illegal search and seizure, prior to Gant , Washington Courts routinely upheld vehicular searches for contraband of any sort incident to arrest except in very rare cases of select non-custodial arrests.