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2 justices dissent on denial of review in DUI evidence case

A drunk driving case recently made its way to the U.S. Supreme Court. At issue was whether the defendant's right to confront witnesses was violated when a blood-alcohol test was presented as evidence without the testimony of the analyst who performed the test. The Supreme Court declined to hear the case, but a pair of justices from opposite ends of the political spectrum collaborated to dissent from that decision.

The dissent was written by Justice Neil Gorsuch and joined by Justice Sonia Sotomayor. Ideological lines aren't always determinative in Supreme Court jurisprudence. Justices of all backgrounds have advocated for the rights of criminal defendants, as these rights are common to all Americans.

In the case under discussion, the State of Alabama presented as evidence the results of a DUI blood test. Since test results can't be cross-examined, they generally must be accompanied by the testimony of the person who performed the test. This allows the defense to probe whether the test was performed properly, for example, whether the testing equipment was properly maintained, and other issues that could reveal critical flaws in the analysis.

Problems with such evidence are not unheard-of. As we discussed recently, for example, over 20,000 DUI convictions in New Jersey may be overturned because a state employee failed to perform required calibrations on the state's breath testing machines.

In this case, the state did present the testimony of an analyst -- just not the one who actually performed the test. The defendant argued that this violated the Supreme Court's precedent in Bullcoming v. New Mexico, which held that the Sixth Amendment's confrontation clause requires the testimony of the analyst.

Justice Gorsuch began the dissent by stating that "cross-examination may be the greatest legal engine ever invented for the discovery of truth," so "the Constitution promises every person accused of a crime the right to confront his accusers." He added that Alabama's errors in this case are obvious, but also noted that prior Supreme Court precedents had sown some confusion. He said that reviewing this case would have clarified some important issues.

Gorsuch rejected the state's technical arguments about whether the report could have been entered on its own and whether it was "testimonial in nature." It was testimonial, and it could not be used without the testimony of the actual analyst who performed the tests.

Dissents have no precedential value, and it does not order the State of Alabama to reverse or even review the case. States would be wise, however, to take this particular dissent as an indication of how the high court would be likely to rule in similar cases.

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