Confrontation Clause Be Damned: D.C. Continues to Use Surrogate Witnesses in DUI Cases

Michael Bruckheim was scheduled to cross-examine Lucas Zarwell, the chief forensic toxicologist in D.C., and a group of DUI lawyers had gathered outside Room 116 yesterday afternoon shortly before 2:00 pm.

Zarwell testified before city council last May that urine samples taken by police to test suspected drunk drivers are not reliable enough to accurately measure a person’s blood alcohol content:  “If you’re going to look at urine concentrations of alcohol and science, there is a very loose correlation,” Zarwell stated.  “There has been several studies done on it, but currently if you are just voiding your urine or urinated into a cup and there is alcohol in that, it does not correlate to a blood concentration.  It could be higher, as much as 40 percent higher.

It could also be 40 percent lower.

And yet the government is continuing to proceed with DUI cases in the District using urine samples as both per se and circumstantial evidence of the defendant’s intoxication at the time of driving.  The government’s expert witness?  Lucas Zarwell.

In addition to offering moral support for Bruckheim, the DUI lawyers who came to watch the trial were also interested in Judge McCabe’s rulings on Bruckheim’s anticipated hearsay and Confrontation Clause objections.  In Bullcoming v. New Mexico, the U.S. Supreme Court held that the government cannot meet its obligations under the Sixth Amendment’s Confrontation Clause through “surrogate” testimony.  Specifically, the Court held that the government cannot substitute the testimony of a lab technician who was familiar with the procedures used in analyzing a blood sample for the presence of alcohol for the testimony of the technician who actually conducted the test.

And yet here was Lucas Zarwell to testify not on the urinalysis he himself had conducted but on the results of a urine test he had supervised.  As in other cases in which he has testified recently, Zarwell often spoke in the passive voice:  “It was re-tested and confirmed.”  When he did use the active voice, he made liberal use of the first person plural:  “We used a headspace gas chromatograph.”

Bruckheim was relaxed and friendly with his cross-examination.  Good afternoon, Mr. Zarwell, he began.  How are you today?   He took his time in laying the foundation for his questioning, despite Judge McCabe’s growing impatience, and after an hour or so of the cross-examination, Zarwell began to show signs of fatigue.  Forty degrees Centigrade, he testified in response to one of Bruckheim’s questions.  Don’t ask me to convert that into Fahrenheit.

Judge McCabe eventually ruled against Bruckheim’s client on both the hearsay and Confrontation Clause issues; this is consistent with the judge’s holdings in other recent case.  The judge told Bruckheim:  You can argue the issue when it comes to the weight I assign Mr. Zarwell’s testimony.  But I am not going to rule out the testimony on the basis of the hearsay and confrontation issues.

More importantly, in ultimately arriving at a guilty verdict, the judge not only used Zarwell’s testimony as circumstantial evidence of the defendant’s intoxication, he also concluded that Bruckheim’s client was guilty of the per se offense.  In other words, he concluded that the urine test alone was enough to make out the intoxication element of the offense, even apart from the police officer’s observations of the defendant’s behavior that night.

The Confrontation Clause issue raised by the Supreme Court in Bullcoming is just one more challenge for Office of the Attorney (OAG) when it comes to an already beleaguered DUI program in the District.  The program was widely discredited with revelations beginning in February 2010 that, due to fundamental problems with the way breath test machines were calibrated, D.C. breath test scores over the past ten years may have been inaccurately reported.  Since that time, a number of police officers involved with the program have been reportedly investigated for falsifying data.  More recently, according to Fox News, at least one Assistant Attorney General has been referred to the D.C. Bar Counsel for possible disciplinary action after police officers told city council she had asked them to lie under oath.

Although the OAG prevailed on the issue yesterday afternoon, a group of lawyers led by Bryan Brown and Thomas Key is looking into a potential appeal of the Judge’s decisions based on Confrontation Clause issues.  Stay tuned.