State v. Richard Dean Boyer, 2011AP305-CR, District 1, 8/16/11
OWI trial, where the chemist who analyzed the blood sample testified, but the person who drew the sample didn’t: the court rejects Boyer’s argument that his right to confrontation was violated by his inability to cross-examine the person who drew the blood.
¶8 The results of a blood alcohol test derived from a properly authenticated sample are admissible at trial under Wis. Stat.§ 885.235(1g). State v. Disch, 119 Wis. 2d 461, 463, 470, 351 N.W.2d 492 (1984). Wisconsin Stat. § 343.305(5)(b) requires that the blood be drawn from the defendant by a qualified person. See Disch, 119 Wis. 2d at 473. Results are properly authenticated when the chain of custody is proven. See id. at 471.
¶9 The crux of Boyer’s argument is that in the absence of Poth’s testimony, Boyer did not have an opportunity to question whether Poth was qualified to draw his blood under Wis. Stat. § 343.305(5)(b). Boyer relies heavily on Melendez-Diaz v. Massachusetts, 557 U.S.___, 129 S. Ct. 2527 (2009), in which the United States Supreme Court held that analysts’ certificates of analysis are affidavits within the core class of testimonial statements covered by the Confrontation Clause. Id., 129 S. Ct. at 2531. However, the court noted that “it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case.” Id. at 2531 n.1. …
¶10 The United State Supreme Court’s recent holdings in Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), also support our conclusion. Bullcoming reiterated the fact that blood alcohol reports “‘made for the purpose of establishing or proving some fact’” are indeed testimonial, but again focused on the petitioner’s right to confront the actual analyst. Id. at 2716 (citation omitted). In Bullcoming, the State introduced a blood alcohol report certified by one analyst, but called another analyst as an expert witness to testify as to the method of testing. Id. at 2713. The Supreme Court held that the petitioner’s Sixth Amendment right to confrontation was violated because the lab report was testimonial, giving the petitioner the right to confront the analyst who actually prepared the report. Id. at 2715. Because Boyer did have an opportunity to confront the witness who prepared his report and because a reasonable chain of custody has been established, we conclude that Boyer’s right to confrontation was not violated by his inability to confront Poth. The report was properly admitted into evidence.