Pending SCOTUS case could moot Sunset proposal to admit DWI breath test results without cross examination

Poking around the Sunset recommendations for the Texas Department of Public Safety, I was a little surprised to see this proposal for "streamlining" hearings for administrative license revocations after DWI:

Require affidavits of breath test operators or breath test supervisors to be admissible without the witness' appearance unless the judge finds that justice requires their presence.

According to the Sunset report, "DPS issued 100,472 notices of suspension to drivers in fiscal year 2007. Defendants requested hearings in 26,492, or 26 percent of the cases." When defendants requested hearings, 18% were dismissed because police or breath test supervisors did not show up at the hearing, and in another 8% DPS failed to meet its burden of proof as judged by the hearing examiner.

The Sunset staff and some legislators like Linda Harper-Brown support doing away with face to face confrontation of witnesses in administrative license revocation hearings, allowing either testimony by phone or merely letting lab reports be submitted as evidence without cross examination. At a hearing on June 24, Harper-Brown argued that forcing officers to attend ALR hearings took them off the street where they would otherwise be performing presumably more important duties. Testifying in the cases they make, however, seems like a pretty important function of a police officer - if a case is worth prosecuting it's worth supplying witnesses and evidence.

The proposal highlights the importance of a case pending before the US Supreme Court for its fall docket (see the SCOTUSWiki page), Melendez-Diaz vs. Massachussetts, that will determine whether lab reports are testimonial documents (see prior Grits coverage).

The problem arises in DWI cases because we know for a fact that breathalyzer technology can be inaccurate. By comparison, field sobriety tests given on the side of the road are even worse: they don't have enough research-based support to even label them junk science; they're just junk. State law specifically allows defendants at the ALR hearing to interrogate "the validity of the test results," according to the Sunset report, so the ability to confront the arresting officer and breathalyzer technician becomes potentially important when contesting an administrative license suspension.

Similarly, we're increasingly learning that many branches of forensic science - ballistics, arson, handwriting analysis, shoeprint matching, breathalyzer tests, urinalysis, etc. - simply aren't as reliable as people (and courts) assumed in the past. That's why I expect, or at least hope, that SCOTUS will decide for Melendez-Diaz and continue to allow cross examination of forensic findings.

In a guest column in the July 14 National Law Journal, Matthew Kaiser calls Melendez-Diaz the "most important case for the future of our criminal justice system," arguing that "The court should reaffirm our collective commitment to a vigorous adversarial system, and hold that forensic evidence must be subjected to cross-examination."

If SCOTUS follows that advice, the Sunset Advisory Commission's recommendation on ALR hearings would immediately become moot. For that matter, even if SCOTUS doesn't require allowing confrontation for forensic reports, Texas should continue to do so in this and other cases as a routine matter of policy. Forensic science isn't neutral and the criminal justice system shouldn't pretend that's the case just for convenience's sake.