This week, the Nevada Supreme Court has reversed prior DUI case law, in its landmark ruling, in Reno v. Howard, 130 Nev., Advanced Opinion 12 (2014). Previous to this ruling, when a defendant accused of driving under the influence “DUI”, would take their case to trial, they were not afforded the opportunity to cross-examine the nurse or EMT who drew their blood. Unless, the defendant’s attorney could establish a “substantial and bona-fide dispute” in the affidavit for blood draw, the court would allow this declaration in as evidence against the accused, with no opportunity to question the witness.
On its face, this practice is an affront to the Sixth Amendment of the United States Constitution’s Confrontation Clause, which affords the accused the right to confront and question witnesses against them. Prosecutors would argue that the “simplicity” of a blood draw, among other factors, made it unnecessary to have the accused confront and question the blood draw nurse. Additionally, Nevada Revised Statute 50.315(6), impermissibly shifted the burden to the accused, meaning under the statute, the accused was required to demonstrate a “substantial and bona-fide dispute” in the blood draw affidavit, before the court would be compelled to not allow the affidavit in, without the witness being available for questioning.
Not only was this burden shifting unconstitutional, as held by the Nevada Supreme Court in this case, but it was impractical. The blood declarations are fairly simplistic, there are lines for the date, the time of the blood draw, and the officer’s signature, as well as the nurse or EMT qualifications. In the course of defending a DUI case, and attempting to argue that a substantial and bona-fide dispute was present, by pointing out an incorrect box was marked, left blank or not legible, courts would often rule that those were simply “clerical errors” and did not rise to the level of “substantial and bona-fide”, and thus, the blood draw nurse was not required to testify in order to let the affidavit into evidence. What was even more troubling prior to this ruling was, even if in a DUI case, it was clear there was a substantial and bona-fide dispute in the affidavit, the defendant, through his counsel, would be required to demonstrate this to the prosecution, in effect, handing over their work-product and case strategy before the case has even begun.
Fortunately, the Nevada Supreme Court Ruling in Reno v. Howard, has reversed previous case law, which allowed this practice, and has restored individual’s basic Sixth Amendment right to confront witnesses against them.
-Michael A. Troiano, Esq.
source: http://supreme.nvcourts.gov/Supreme/Decisions/Advance_Opinions/
