The state Supreme Court agreed Monday to hear a case that could affect the way DUIs are prosecuted in Nevada.
Attorneys for the city of Reno asked the high court to order a municipal judge to accept a document needed before the blood sample evidence in a DUI case can be admitted.
Prosecutors moved to introduce the declaration by the professional who took the blood sample from defendant Cheryl Ann Lee — a step necessary before the blood evidence itself can be introduced. But defense lawyer Larry Dunn objected on grounds he was not being allowed to put that person on the witness stand and question her. He argued that under the 6th Amendment, his client has the right to confront her accuser and that the phlebotomist who drew the blood samples is an accuser.
Municipal Judge Ken Howard agreed and rejected the declaration, effectively barring introduction of the blood evidence. He ruled that requiring the defense to establish a substantive and bona fide issue regarding the facts before cross examination is allowed violates the 6th Amendment.
Washoe District Judge Scott Freeman upheld that ruling.
The city appealed to the Supreme Court, arguing that Nevada’s law requires a compelling, substantive reason to bring the phlebotomist to court and put her on the stand, where she can be cross-examined. Deputy City Attorney Chris Hazlett-Stevens said Nevada’s law has been ruled constitutional in the past, and similar laws have been upheld even by the U.S. Supreme Court. He said that the declaration isn’t evidence other than to establish the qualifications of the person who collected the blood sample.
Before a courtroom fairly filled with Northern Nevada DUI lawyers, Dunn argued the phlebotomist isn’t neutral but a witness for the prosecution. He said that as such, she should be available to be questioned to determine such things as her qualifications, whether she has any sanctions against her, the chain of custody of the blood sample and whether proper procedures were followed, among other things.
Stevens said the phlebotomist can be put on the stand if there is a substantive issue but indicated there was no such showing in this case.
Dunn replied that there is no definition of substantive issue in the statute.
Asked by Justice Jim Hardesty whether the defense must show a substantive and material issue, Stevens said, “I believe it is.”
“It puts a burden on the defendant when the defendant shows up in court,” said Justice Michael Douglas, seemingly supporting Dunn’s argument. “If that’s not there, you have no case.”