The United States Supreme Court issued its decision in Bullcoming v. New Mexico today, holding that the Sixth Amendment precludes the State from introducing a lab report of a forensic blood test without calling the analyst who conducted the analysis. The State attempted to satisfy the confrontation clause by calling a different analyst who did not conduct the test but was familiar with blood testing procedures. The United States Supreme Court found that the defendant’s right of confrontation was violated by this procedure in a 5-4 decision. Click this link to read a copy of the decision.

The decision of the Court is notable in that four justices viewed the result to be governed by the Court’s decision in Melendez-Diaz v. Massachusetts, 557 U.S. ___ (2009). The Court rejected the argument that the seeming reliability of scientific evidence does not exclude this evidence from being subject to the Confrontation Clause. The Court cited argument raised in the brief of the National Association of Criminal Defense Lawyers that errors in forensic blood test are not so remote to be negligible.

Finally, the court rejected the argument that requiring live testimony is too burdensome for the State. As in Melendez-Diaz, the Court stressed that notice and demand procedures can be used to help reduce the expense of having a forensic expert testify in court.

The Massachusetts Supreme Judicial Court decided today that Registry of Motor Vehicle documents are testimonial, requiring the Commonwealth to present the testimony of a live witness to admit the records into evidence at the time of trial. The SJC announced its decision in the case of Commonwealth v. Parenteau.

In the case of Peter Parenteau, a judge of the Ayer District Court admitted a certification from the RMV stating that the defendant was mailed notice that his license was suspended for ten years. The defendant had accepted a guilty plea to an OUI charge in the Palmer District Court and believed that his license was suspended for two years. It is likely that the prosecutor did not know of the other, likely out-of-state convictions, and believed that the defendant only had one prior OUI offense; however, the RMV records must have indicated that the defendant had three other Prior DUI convictions in addition to the Palmer conviction to trigger the ten year license suspension. A Fourth Offense Massachusetts DUI charge carries with it a ten year license loss; in some case the RMV records differ from the record of conviction possessed by the court, in those cases, the RMV will always rely on its own records in imposing a license suspension.

In Parenteau, the RMV purported to mail the notice to the home of the defendant’s parents and at the time he was no longer living at that residence. Accordingly, at trial, the defendant was contesting the issue of whether he received notice of the suspension.

The SJC, following the landmark United States Supreme Court decision in Melendez Diaz v. Massachusetts, 129 S.Ct. 2527 (2009) held that the RMV documents were testimonial because they were used to establish the fact that the defendant was mailed notice of the suspension. The Court held that the RMV documents were no different than the drug certification at issue in Melendez-Diaz as the certification was a solemn declaration created for the purpose of proving some fact.

The SJC rejected the Commonwealth’s argument that the RMV certification was a business record because the court held that it was not created at the time that the notice was purportedly mailed. The SJC indicated that it would have considered the notice a business record if the notice was created contemporaneous with the mailing of the notice to the defendant.

The SJC’s decision will likely result in the RMV changing its policy to create a contemporaneous business record when mailing notice of a license suspension. Even if a business record existed in this case, the defendant was contesting the issue of where the notice was sent and whether it was sent to the correct address; accordingly, the defendant still would have had the right to confront a witness from the RMV regarding where and when the notice was sent.

As a Massachusetts DUI lawyer, the decision of the SJC was contrary to several recent decisions rejecting Confrontation Clause challenges and could signal a change in the court’s interpretation of the right of confrontation. In the context of the Parenteau case, where the trial centered around the issue of whether the defendant received notice, it is clear that the SJC made the correct decision as the defendant was essentially denied any opportunity to contest the issue at trial without being provided the opportunity for cross examination.

For Massachusetts OUI lawyers, this decision may mean that the Commonwealth will be unable to prove any charge of operating with a license suspended for OUI or other unlicensed charges as the RMV does not have contemporaneous business records and likely has no ability to track the identity of the person who sent the notice to present live witness testimony. Accordingly, I would expect that many of these charges will be dismissed as a result of this decision.
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