The most impactful, negative legal ruling to issue from the Maine Law Court in some time is still too new to fully evaluate it's future impact. However, we can make an educated guess that all Maine breath test cases will be negatively impacted.
On May 7, 2015, the Maine Law Court issued a ruling in State of Maine v. Tozier. This case involves an interpretation of statutory law and its application on expert witnesses as it applies to breath testing. In a nutshell, the Law Court ruled that the State of Maine is not required to produce an expert witness in response to a timely request and that the term "qualified witness" does not contemplate the State's chemist.
This is problematic for a number of reasons. First and foremost, since the State is no longer required to produce a chemist (expert witness) to testify to the operation of and reliability of the Intoxilyzer 8000, the burden of producing the State's chemist falls on the defendant. That means that the defendant bears the cost of paying for the State's chemist to come and testify and the defense attorney can only ask open ended, non-leading questions through direct. This undercuts the classic defense strategy of requiring the State to call their chemist as a witness so that the defense team can cross-examine the chemist. This is a much more effective way to present the evidence to a jury.
The second major problem with this ruling is that it flies in the face of established US Supreme Court jurisprudence, which requires the Government to produce an expert witness to testify when the Confrontation Clause of the US Constitution has been implicated. The Confrontation Clause has been at the forefront of recent legal jurisprudence throughout the country as well as at the US Supreme Court level.
Two US Supreme Court cases control the Confrontation Clause issue and they are Melendez Diaz v. Massachusetts and Bullcoming v. New Mexico. In Melendez-Diaz, the US Supreme Court found that "certificates of analysis" may not be admitted into evidence without the supporting testimony of the expert witness who analyzed the drug. This was a landmark ruling because the Government in Melendez-Diaz were permitted to enter a certificate of analysis concerning illegal drugs that the defendant possessed and were tested, over the defendant's objection. The crux of that argument was that the defendant was denied his right to confront the witness who performed the drug test analysis and that the defendant could not cross-examine (confront) a document. Cross-examination of the witness in a criminal case is a fundamental right and the document itself was "testimonial" for the purpose of trial.
In Bullcoming, a blood test certificate indicating the defendant's blood alcohol level, which was prepared for the purpose of a police investigation and prosecution of a defendant was found to be "testimonial" and thus implicated the right to cross-examine the person who analyzed the blood sample under the Confrontation Clause. Bullcoming built on the Confrontation Clause rights foundation elucidated in Melendez-Diazand further stated that while the certificate of analysis was based on machine generated data that while reliable, the defendant was entitled to cross-examine the the analyst in accordance with the fundamental rights extended to all criminal defendants under the Confrontation Clause.
Now we have Tozier. It would appear that in Tozier, the majority of the Maine Law Court turned recent US Supreme Court jurisprudence on its head and came up with a tortured interpretation of the application of the Confrontation Clause. The Tozier Court took great pains to differentiate a computer generated printout produced by a self-contained breath testing apparatus from all other documentary evidence that's been labeled as "testimonial" by the US Supreme Court.
A strong dissenting opinion was put forth by Justice Jabar of the Maine Law Court. Justice Jabar correctly found that the document was testimonial in nature and that there was no discernible difference between the document produced by a self-contained breath testing apparatus and documents produced by gas chromatography machines and mass spectrometry machines, both of which have been deemed to produce certificates of analysis that are testimonial in nature and thus, implicate the defendant's rights to cross-examine the analyst under the Confrontation Clause.
So, how does this affect your OUI going forward? Well, I think we can safely say that anytime there is an issue with the breath test, the defense will be forced to call the state's chemist, Bob Morgner, who is extremely prosecution friendly. In the past, the only way to control his prosecution friendly testimony was to ask controlled questions through cross-examination. That method of defense is effectively foreclosed by the majority opinion rendered by the Maine Law Court.
Sadly, this is not the first nor will it likely be the last, adverse ruling where the Law Court takes great pains to twist the US Constitution in order to fit their anti-OUI position. It would appear that the Maine Law Court believes that an exception to the US Constitution exists whenever its implicated in a drunk-driving case. The eventual replacement of these judges with more moderate judges cannot happen quickly enough. Unfortunately, we'll have to wait until these judges retire as the Maine Law Court is appointed for life. Sadly, the repercussions that emanate from this decision will reverberate for decades to come.
If you've been arrested for drunk driving in Maine, call Maine's preeminent criminal defense attorney... William T. Bly. Call us at 207-571-8146.