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Massachusetts DUI evidence and the impact of Briscoe on the right of confrontation

The admissibility of breathalyzer evidence in Massachusetts may be impacted by a confrontation clause case from Virginia that the United States Supreme Court agreed to hear for the upcoming term. Commonwealth v. Briscoe. The appeal in Briscoe concerns several cases that were consolidated and all raise the same issue of whether Virginia’s notice and demand statute satisfies the Constitutional requirements of the Sixth Amendment confrontation clause.

The Briscoe cases involves the issue of the admissibility of a drug certificate of analysis. Unlike the Melendez-Diaz case where the Supreme Court required live testimony, the Virginia statute only allows the certificate to be admitted if the State gives the defendant notice and demand of their intent to rely on the affidavit seven days prior to trial and files this with the court. The defendant is then given the opportunity to call the chemist as an adverse witness with the cost of the summons, incurring to the State.

The Melendez-Diaz decision suggested that States could enact law requires a defendant to assert the right of confrontation prior to trial, suggesting that notice and demand statutes would satisfy the Sixth Amendment requirements. Additionally, the Melendez-Diaz decision clearly indicated that the right of confrontation could be waived.

The Virginia statute appears contrary to the language of Melendez-Diaz and the court should strike it down, though it would be anticipated the decision would essentially direct states as to how to pass a Constitutional notice and demand statute. The flaw in the Virginia statute appears that it requires the defendant to subpoena the lab technician and call the lab technician as a witness in the defense case. In a criminal trial, the burden is always on the Government to call witnesses to establish the essential elements of the offense and the due process clause is violated by efforts to shift the burden to the defendant. The language of the Sixth Amendment also underscores that the Government has to call witness against the defendant to preserve the defendant’s right to confront witnesses against him.

In addition to the language of the Melendez-Diaz decision, the defense counsel’s brief in Briscoe depicts other flaw with the Virginia statute that the right to call the chemist as an adverse witness in the defense case is not the same as being provided with the opportunity for cross examination after the chemist testified as a witness on direct examination for the Government. Further, the defense brief points out that this essentially time saving procedure has no logical limitation and could be expanded to other cases not involving drug analysis, reverting back to the rejected concept of trials based on affidavit.

The United States Supreme Court should strike down the Virginia statute. Massachusetts has yet to enact any similar notice and demand statutes in DUI case or drug cases. The impact of the United States Supreme Court confrontation clause will have a major impact on the admission of breathalyzer evidence as the confrontation clause cases define how the Government must proceed to have documents regarding the accuracy and reliability of the breathalyzer machine placed before the court.

By the time Briscoe is decided by the Supreme Court, likely to be June 2010, there will be numerous decision from state courts applying Melendez-Diaz to the admissibility of breathalyzer evidence. The Briscoe decision is likely to shape the method by which states enact notice and demand statutes.

Attorney DelSignore is a Massachusetts criminal defense attorney handling OUI/DUI cases throughout the State and will answer your call at any time by dialing 508-455-4755 or 781-686-5924 or by email.

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