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Drunk Driving Defendant Has A Right To Confront Analyst That Tested Blood

Alleged drunk driver, Donald Bullcoming, was involved in a vehicle accident in New Mexico in August 2005. The other party believed he observed signs that Bullcoming was intoxicated so he called the police. Bullcoming left the scene but was later apprehended by police. He failed the field sobriety tests and was subsequently arrested for driving under the influence. He refused to provide a breath sample, so a warrant was served to take a blood sample.

The blood sample was sent to the New Mexico Department of Health, Scientific Laboratory Division (SLD) to determine Bullcoming’s blood alcohol concentration (BAC). A gas chromatograph machine was used to test the blood sample and the test was performed by Curtis Caylor, a SLD Forensic Analyst. He then certified the test results in a “Report of Blood Alcohol Analysis” form, which showed the result to be a .21.

At trial, the prosecutor did not call Caylor to testify. Instead the government attempted to introduce Caylor’s findings as a “business record” during the testimony of Gerasimos Razatos, another SLD scientist. Razatos did not observe or review Caylor’s analysis.

Defense counsel objected to the introduction of the analyst’s findings without his testimony at trial, stating the introduction of the report would violate the defendant’s Sixth Amendment right “to be confronted with the witnesses against him,” (Confrontation Clause).

The trial court overruled the objection and admitted the report as a business record. Bullcoming was convicted and appealed. The Court of Appeals upheld the conviction stating the report was “non-testimonial and prepared routinely with guarantees of trustworthiness.”

The case was taken to the US Supreme Court which ruled in Bullcoming v. New Mexico that the Confrontation Clause requires the scientist that performed the test testify at trial unless the scientist is unavailable at trial and the defendant had an opportunity to cross-examine that scientist before trial.

While this case was being appealed, the US Supreme Court ruled on this issue in Melendez-Diaz v. Massachusetts. In that case, the court admitted affidavits that reflected the results of forensic analysis that showed the material seized from the defendant was cocaine. The court found in that case that the affidavits were “testimonial, rendering the affiants ‘witnesses’ subject to the defendant’s right of confrontation under the Sixth Amendment.”

These cases are expanding the Crawford v. Washington case, where the court held, “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.”


If you have been charged with drunk driving in San Diego County, you need to hire The Law Offices of Susan L. Hartman, the exclusively DUI defense firm, to aggressively defend your case. Contact us now for a free telephone consultation to discuss your rights, defenses, and the best strategy on how to handle your matter. Call 619-260-1122 or use the “Contact Us” form on this page.