The Kickham Comment - Boston Criminal Attorney Blog
What I’m going to write about today will be of interest to not only Massachusetts OUI lawyers such as myself, but to anyone who drives in Massachusetts. Previously, on July 1 of this year, I blogged about a case that was handed down by the United States Supreme Court earlier this year. While I didn’t cite that case by name in that blog, it was Commonwealth v. Melendez-Diaz. In that ruling, the U.S. Supreme Court held that lab reports offered as evidence by prosecutors to prove the chemical composition of substances that it (the prosecution) claimed were illegal drugs, would in the future require the in-person testimony at trial, of the lab technician(s) who actually tested the substance. This ruling was substantial for persons accused of Massachusetts drug crimes, as prior to this ruling, the prosecution needed to introduce only a certificate from the State Police Crime Laboratory, showing that the substance tested was a certain drug.
From that ruling forward, prosecutors would have to bring the specific lab technician who tested the substance into court, to allow the defense to cross-examine him or her as to various aspects of the testing, of their own qualifications and experience, the testing equipment used, etc., etc. The core of the U.S. Supreme Court’s reasoning in this case, was that “Confrontation Clause” of the U.S. Constitution, which requires the appearance of live witnesses who are testifying against a defendant, would be violated without the in-court testimony of the actual lab technician who conducted the drug testing. The decision was widely criticized by prosecutors not only in Massachusetts, but across the nation. (Notably, it was Massachusetts Attorney General Martha Coakley who argued – and lost – the case for the state of Massachusetts.) From the day the decision was handed down, prosecutors have argued that the requirement of personally producing state lab technicians to testify in person about these types of illegal drug possession and drug trafficking cases, would grind prosecutions to a halt: The argument was that District Attorneys’ offices across the state simply prosecute too many of these cases to be saddled with this “burden”.
Recently, things just got a lot more interesting in the Massachusetts criminal court system – and may get even more so in the next few months You see, the ruling on lab technicians in Melendez-Diaz, had been limited to cases where drug samples had been tested by state lab officials, in cases specifically involving Massachusetts illegal drug possession and distribution charges. But last month, in a Marlborough District Court case involving Massachusetts OUI charges, things took an interesting turn. First, some background: The case name is Commonwealth v. Parmenter ,and the defendant, one Brian Parmenter, had been in a motorcycle accident that resulted in severe injuries to him and his passenger. Though Parmenter appeared dead at the scene, a nurse who happened to live near the accident was able to revive him. Parmenter was taken to a hospital, and during his emergency room treatment, blood was drawn by hospital personnel and tested for alcohol for medical reasons.
Importantly, his blood was not tested for alcohol at the request of police or law enforcement authorities. Parmenter was eventually charged with Massachusetts drunk driving/OUI offenses, and prosecutors obtained a warrant for his medical records and test results. Prosecutors obtained these medical records, for the purpose of introducing those records at trial to prove that his blood alcohol level at the time of the accident was .09 or higher (the state limit is .08 – any higher than that, and there is a “per se” presumption in Massachusetts, that an operator was legally impaired.) In what was no surprise to me as a Norfolk County Massachusetts OUI attorney, the prosecution did not intend to call the phlebotomist who conducted the blood test. (No surprise, because prosecutors usually don’t call technicians to the stand in Massachusetts OUI cases. Normally, they just have the arresting police officer testify as to Breathalyzer test results .)
This is where things get interesting: Parmenter’s lawyer filed what is called a “Motion in Limine” (which is a motion made at the start of a trial requesting that the judge rule that certain evidence may not be introduced in trial,) in which he argued that, per the Supreme Court’s ruling in Melendez-Diaz, the hospital blood test could not be admitted without live testimony from the medical technician who either drew the blood or tested it.
In my next post, I’ll explain what happened from there, and what these developments may mean for persons arrested for Massachusetts OUI offenses.
The Law Offices of William D. Kickham and Associates represents persons accused of OUI, DWI, and several other criminal offenses in Massachusetts. We specialize in the defense of these criminal charges, and provide coverage in all courts in eastern Massachusetts. If you or someone you know has been arrested or accused of a crime in Massachusetts, contact us for a free consultation.