Earlier posts (here, here, and here) discuss the statutory and constitutional requirements for obtaining a sample of a defendant’s blood for analysis in an implied-consent case. This post likewise addresses blood draws in such cases but addresses two narrower issues. First, must the State establish that the blood was drawn by a qualified person before the results of such an analysis may be admitted into evidence? Second, does the confrontation clause of the Sixth Amendment bar testimony from a law enforcement officer regarding the blood-extractor’s qualifications?
The provisions of G.S. 20-139.1 governing the withdrawal of blood for chemical analysis and the admission of the results of such a chemical analysis were among those amended by the Motor Vehicle Driver Protection Act of 2006, effective for offenses committed on or after December 1, 2006. Before these amendments, G.S. 20-139.1(c) specified that “[w]hen a blood test is specified as the type of chemical analysis by the charging officer, only a physician, registered nurse, or other qualified person may withdraw the blood sample.” This subsection further provided that “[e]vidence regarding the qualifications of the person who withdrew the blood sample may be provided at trial by testimony of the charging officer or by an affidavit of the person who withdrew the blood sample and shall be sufficient to constitute prima facie evidence regarding the person’s qualifications.”
While current G.S. 20-139.1(c) still refers to the withdrawal of blood by a “qualified person,” the reworded subsection directs qualified persons to withdraw blood rather than explicitly restricting bloodletting to those who are qualified. And the provisions governing proof of a person’s qualifications were removed entirely in 2006. Instead, new G.S. 20-139.1(c4) provides that blood test results are admissible to prove a person’s alcohol concentration or the presence of an impairing substance if: (1) a law enforcement officer or chemical analyst requested the blood sample; and (2) a chemical analysis was performed by a chemical analyst with the appropriate DHHS permit.
Thus, notwithstanding the requirement that blood be drawn by a qualified person, it appears that the State is no longer required to establish that the blood was withdrawn by a qualified person before the results of a blood analysis may be introduced at trial. Nevertheless, the State still may attempt to demonstrate at trial that a qualified person drew the defendant’s blood, given that its failure to do so may affect the weight afforded to the results by the finder of fact.
Frequently, such proof is offered through testimony of a law enforcement officer who may explain how he or she selected the allegedly qualified person and the basis for his or her view that the person was qualified. In State v. Hinchman, 192 N.C. App. 657 (2008), the court of appeals determined that the State met its burden under previous G.S. 20-139.1(c) to prove the blood was drawn by a qualified person by eliciting testimony from the officer who requested the blood sample that the person who withdrew the blood was working in the “blood lab” at the hospital—a restricted-access area—and was wearing a “lab tech I uniform—which was pink pants and a white shirt and her name tag.” The court rejected the defendant’s argument that the State was statutorily required to establish the lab technician’s qualifications through live testimony from the technician. The defendant also argued that the officer’s testimony about the technician’s qualifications violated his Sixth Amendment right to confront witnesses, but the court declined to consider that argument as it was not properly assigned as error on appeal. But what of the argument? Are the qualifications of a person who draws blood testimonial statements?
Remember that the confrontation clause provides that in all criminal prosecutions the accused shall enjoy the right to confront witnesses against him. In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court interpreted the clause to bar the introduction of testimonial hearsay statements by a witness who is not subject to cross examination at trial unless the witness is unavailable and the defendant had a prior opportunity to cross examine the witness. Crawford defined the term “testimony” as “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Crawford, 541 U.S. at 51. (For a detailed discussion of Crawford and its progeny, see Jessica Smith, Understanding the New Confrontation Clause Analysis: Crawford, Davis, and Melendez-Diaz, Administration of Justice Bulletin 2010/02 (April 2010) (available here)).
Does the law enforcement officer’s testimony in Hinchman about the lab technician implicate the confrontation clause or require application of the Crawford test? No. The law enforcement officer testified as to his observations regarding where the technician worked and what she was wearing rather than to someone else’s out-of-court statements. Thus, there is no hearsay and no confrontation clause problem. See, e.g., Deeds v. State, ___ So.3d ___, 2009 WL 4350783 (Miss. 2009) (rejecting defendant’s argument in DWI trial that his confrontation clause rights were violated by the introduction of blood test results because the nurse who withdrew his blood did not testify at trial; concluding that neither the procedure used to draw the defendant’s blood nor the blood itself were statements or “nonverbal conduct intended as an assertion” and that unidentified nurse was not a witness against defendant).
Suppose, however, that a law enforcement officer in an implied consent case asks a hospital nurse to draw blood and, in the nurse’s office, sees affixed to the wall a diploma conferring upon the nurse a degree in nursing and a Board of Nursing license. May the officer testify about those observations without violating a defendant’s confrontation rights? Yes.
Now the officer’s testimony arguably relays hearsay consisting of statements contained in official documents created by another entity that are offered to prove the nurse was qualified. Yet these statements by the university and the nursing board are not testimonial under Crawford. They were created for administration of the entities’ affairs and not for the purpose of establishing this nurse’s qualifications at trial. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2539-40 (2009) (distinguishing affidavits reporting the results of forensic analysis that were prepared for use at trial from nontestimonial business and public records). So there is no confrontation clause bar to their admission.
Thanks to my colleague Jessica Smith, expert in all things Crawford, for her assistance with this post.
Shea,
I was counsel to Mr. Hiunchman at both the trial and appellant level. The issue was not that the Trooper’s assertions about the physical description were subject to confrontation and cross-examination…they are clearly not. The issue was whether a trooper’s physical description was sufficient to establish that the person was a “qualified person to withdraw the blood sample”. There was no case law on point in NC. However, in South Carolina their Supreme Court had ruled on the issue that was essentially on all fours with the issue in Hinchman. It ruled that the physical description was not sufficient. It was argued in our brief, but interesting enough not even mentioned in the opinion of the Court. I think the Corut would have had a very difficult if not impossible time distinguishing the case. Thus, simply omit the discussion altogther. The cite is State v. Frey, 362 S.C. 511, 608 S.E.2d 874 (2005). Take a look and give me your thoughts. As a side note, the Court also overruled our objection to the Trooper being able to state the name he saw on the name tage worn by the person. We contended that the tag was a non-verbal statement intended as an assertion by the person wearing the tag to advise ofthers who she was and her creditials )(RN). This too fell on deaf ears.
Finally, the Court also got it wrong when it ruled that the incourt analysts could simply state the result contained in the report made by the non-testifying analysts. The Court said it was not prohibited by Crawford. Of course, we know that is wrong and confirmed by Melendez and appellate cases in our state now.
Thank you for the updates and analysis you provide…particularly so quickly.
Following your logic about the RN’s name tag, the Trooper would also not be permitted from saying what hospital he went to, or that it was in fact a hospital, since the sign on the front door would be a, “non-verbal statement,” intended to be an assertion that the building contained a hospital inside…
Sorry, should read: “Trooper would also not be permitted to say what hospital…”
State v. Frey, 362 S.C. 511 (2005), interpreted a South Carolina statute that was similar to the former version of G.S. 20-139.1(c) in that it required that blood be drawn by qualified medical personnel and that the State demonstrate compliance with this statutory requirement as a foundation for admitting blood test results. (As noted above, the 2006 amendments to G.S. 20-139.1 appear to have removed this foundational requirement for introduction of blood test results in N.C.) Interestingly, the South Carolina legislature amended its implied-consent laws to provide that the failure to follow statutory procedures required exclusion of the evidence if the failure materially affected the accuracy or reliability of the test results. This amendment became effective shortly after Frey’s trial. The South Carolina supreme court applied this exclusionary rule on appeal, instructing the trial court upon remand to determine whether the State’s failure to satisfy the qualified person requirement required exclusion of the test results.
Now having the SCOTUS opinions on the issue, the Court in Hinchman was clearly wrong on its reasoning, and the defendant was right on track.
Recently in Pa I was convicted of DUI and the Nurse who drew the Blood was not present to testify. During Trial the Lab Technician testified that when she opened the envelope or box containing the samples there were no person’s name written on the two tubes of blood submitted for evidence. Does not this violate the confrontation clause of the 6th Amendment of the U.S. Constitution? I am of the belief that it does and that the Blood should not have been admitted into evidence unless the blood tubes were marked. Help me with the Pa law on this case
Based upon the recent Supreme Court Case I believe it was a violation. In Blockbuster.