The Phlebotomist as a (non)Necessary Witness
Brandon Hughes
Traffic Safety Resource Prosecutor
Getting a blood draw in an impaired driving case used to be the rarest of treats. But now, with the escalation of drug-impaired drivers and an overall movement by law enforcement to seek evidence beyond a defendant’s refusal to provide a breath sample, blood results in these cases are becoming more common. In the wake of Crawford1, Melendez-Diaz2, and even Bullcoming3, prosecutors are left with the question of which witnesses are required to testify in order to lay the predicate for the admission of the results of the blood test.
By far, the question I am asked most often with regards to this issue centers around the person who drew the blood. More to the point, the prosecutor wants to know: “Do I need to call the phlebotomist as a witness?” The answer is not necessarily; however, to most accurately answer that question, an examination of the specific facts of your case is in order. For the purposes of this article I am using the term “Phlebotomist” generically to refer to anyone who draws blood for testing purposes, regardless of actual job title.
There are three primary issues to consider when determining if the phlebotomist in your case is a necessary and indispensable witness. First, establishing they are qualified to draw blood pursuant to §32-5A-194(a)(2) Ala. Code (1975). Secondly, establishing the chain of custody for the blood sample. Lastly, satisfying the defendant’s right to confront the witnesses against him or her as guaranteed by the Sixth Amendment to the United States Constitution.
§32-5A-194(a)(2)
This is perhaps the easiest issue to overlook when preparing your case. You are going to need to establish that the person who drew the defendant’s blood was a “physician or a registered nurse (or other qualified person)” as required by the statute. If you are not going to call the phlebotomist to testify, one way to establish their qualifications is by calling someone from the hospital’s human resources department to testify that the person who drew the blood was employed by the hospital, what their job responsibilities were, and that those responsibilities included drawing blood. Also, did the person who drew the blood sign a form? If so, did that person also include their job title? Did the officer witness the signature? If the answer is yes to all three questions, the officer may be able to establish this fact for you. Yet another way is through the officer’s personal knowledge. For instance, the officer can testify that he or she knows that the person who drew the blood was a registered nurse.
Ultimately, how this fact is established is not important; only that it gets established. You don’t want this to be the issue that keeps your blood evidence from being admitted.
Chain of Custody
This person drew the blood so they are in the chain, right? Yes, they are a link in the chain, but that still does not mean they need to testify. The Alabama Supreme Court addressed this issue in Ex Parte Holton, 590 So. 2d 918, 919-920 (Ala. 1991)(emphasis added):
We have held that the State must establish a chain of custody without breaks in order to lay a sufficient predicate for admission of evidence. Ex parte Williams, 548 So. 2d 518, 520 (Ala. 1989). Proof of this unbroken chain of custody is required in order to establish sufficient identification of the item and continuity of possession, so as to assure the authenticity of the item. Id. In order to establish a proper chain, the State must show to a "reasonable probability that the object is in the same condition as, and not substantially different from, its condition at the commencement of the chain." McCray v. State, 548 So. 2d 573, 576 (Ala. Crim. App. 1988). Because the proponent of the item of demonstrative evidence has the burden of showing this reasonable probability, we require that the proof be shown on the record with regard to the various elements discussed below.
The chain of custody is composed of "links." A "link" is anyone who handled the item. The State must identify each link from the time the item was seized. In order to show a proper chain of custody, the record must show each link and also the following with regard to each link's possession of the item: "(1) [the] receipt of the item; (2) [the] ultimate disposition of the item, i.e., transfer, destruction, or retention; and (3) [the] safeguarding and handling of the item between receipt and disposition." Imwinklereid, The Identification of Original, Real Evidence, 61 Mil. L. Rev. 145, 159 (1973).
If the State, or any other proponent of demonstrative evidence, fails to identify a link or fails to show for the record any one of the three criteria as to each link, the result is a "missing" link, and the item is inadmissible. If, however, the State has shown each link and has shown all three criteria as to each link, but has done so with circumstantial evidence, as opposed to the direct testimony of the "link," as to one or more criteria or as to one or more links, the result is a "weak" link. When the link is "weak," a question of credibility and weight is presented, not one of admissibility.
The Alabama Supreme Court also had this to say: “While each link in the chain of custody must be identified, it is not necessary that each link testify in order to prove a complete chain of custody.” Ex Parte Slaton, 680 So. 2d 909, 918 (Ala. 1996).
The Supreme Court of the United States also addressed this issue: “…we do not hold, and 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…this does not mean that everyone who laid hands on the evidence must be called” (emphasis added), Melendez-Diaz, 557 U.S. at 311, n. 1.
So long as the officer observed the blood draw and subsequently took possession of the vial(s) of blood and the evidence was never outside of the officer’s presence, the appearance of the phlebotomist in court is not required for the purposes of chain of custody.
Confrontation Clause
This is most likely where the biggest challenge from the defense will come. They will cite Crawford, Melendez-Diaz, and maybe even Bullcoming when making their argument.
The Sixth Amendment to the United States Constitution provides, in pertinent part, that “In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” It is important to note that the Supreme Court of the United States ruled in Crawford, that this right to confrontation applies only to witnesses who “bear testimony” or make testimonial statements against the defendant. Whether an act or statement is testimonial in nature can be viewed as an element v. non-element issue as stated by the North Dakota Supreme Court in State v. Gietzen, 786 N.W. 2d 1 (N.D. 2010). In Gietzen, the court interpreted Melendez-Diaz as clearly “distinguishing testimony entered to prove an element of a crime from a statement entered for other purposes.” This assertion that the elements evidence/non-elements evidence distinction is at the heart of the U. S. Supreme Court’s post-Crawford confrontation analysis is further supported by the following excerpt from the oral argument transcript in Melendez-Diaz, wherein counsel for the eventual prevailing party clearly argued for the elements/non-elements distinction4:
Justice Breyer: But if I assume -- I'm really uncertain as to whether it has covered "testimonial" or not.
And also, I'm not enamored particularly of seeing on a close question what happened in ancient history.
Mr. Fisher: --I understand.
Justice Breyer: All right. Now, is there anything else you want to add to me on those assumptions?
Mr. Fisher: Yes, that -- that, again, it is -- it is not for the court; it's for the defendant to decide. We think the definition of "testimonial" generally speaking ought to be that when a document is prepared in contemplation of prosecution, or more specifically in this case to prove a fact that is an element of a criminal case, because that's what these reports say, then they should fall under the Confrontation Clause.
The simple takeaway is this: the drawing of a person’s blood is a non-testimonial act; therefore, the confrontation clause does not apply. In an unpublished memorandum issued by the Alabama Court of Criminal Appeals in the case of Anthony Derrell Logan v. City of Florence (released March 15, 2013), the Court reached this same conclusion, citing State v. Nez, 148 N.M. 914, 920, 242 P. 3d 481, 487 (2010): “The absence of the blood drawer from trial and opportunity for defendant to cross-examine the blood drawer relating to chain of custody does not provide grounds for a confrontation objection to the admissibility of a blood-alcohol report.”
Determining whether an act or statement is testimonial in nature or not is critical when deciding if a witness’s appearance in court, during trial, and on the witness stand is required for the admission of your evidence.
Conclusion
A prosecutor is tasked with making a number of decisions in every case he or she takes to trial; chief among them involves determining which witnesses to call in order to lay the proper foundation for the admission of evidence. In impaired driving cases involving a blood draw and a subsequent analysis of the blood, it is important to remember that, first and foremost, you must establish that a qualified person drew the blood. Beyond that, the officer’s testimony should be sufficient to establish the chain of custody of the blood evidence from the moment of the blood draw to the point where the officer places it in the evidence locker at the police station or delivers it to the Alabama Department of Forensic Sciences via U.S. mail or hand delivery. As for the confrontation issue, the phlebotomist is not, per se, a necessary and indispensable witness and failure to call them is not a violation of the Sixth Amendment’s Confrontation Clause.
Endnotes
1 Crawford v. Washington, 541 U.S. 36 (2004)
2 Melendez-Diaz v. Massachusettes, 557 U.S. 305 (2009)
3 Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011)
4http://www.oyez.org/cases/2000-2009/2008/2008_07_591 (last accessed August 29, 2012) (relevant audio portion is at 16:10 minutes to 16:47 minutes; written transcript is not on numbered pages) (emphasis added).
For more information regarding this article or any other traffic related issues, please feel free to contact me anytime.