The Pennsylvania Superior Court has decided the case of Commonwealth v. Hajdarevic, holding that the Commonwealth may not introduce blood test results in a DUI case without calling as a witness the person who actually drew the defendant’s blood. In this case, the Commonwealth had tried to rely solely on an expert witness who had analyzed the results of the blood draw without ever presenting testimony to establish the chain of custody for the testing. The Superior Court rejected the Commonwealth’s position, finding that the evidence had been improperly admitted in violation of the defendant’s confrontation clause rights. This is an important case because it properly prevents the Commonwealth from taking short cuts to try to railroad defendants in DUI cases.   

Commonwealth v. Hajdarevic

A Pennsylvania State Police (“PSP”) trooper was on duty in 2017. While driving his marked police car in Shippensburg, PA, the trooper noticed a passing vehicle fail to deactivate its high beams. The trooper subsequently initiated a traffic stop at approximately 12:23 AM. The defendant was the sole occupant of the vehicle. The defendant told the trooper that he was coming from a friend’s house where he had consumed several beers. While speaking to the defendant, the trooper noticed a “moderate odor of alcoholic beverage” and stated that the defendant had bloodshot and glossy eyes. 

Shortly after this conversation, the trooper asked the defendant to exit the vehicle. The defendant was then asked to perform some field sobriety tests, but because the defendant had back problems, he only performed the Horizontal Gaze Nystagmus test. Presumably, the defendant failed this test, and he was subsequently placed under arrest. The defendant was then taken to Chambersburg Hospital for a blood draw. A technician drew the defendant’s blood at the hospital. They generated a report that showed that they took the defendant’s blood at 12:58 AM. The report showed that the defendant’s BAC was above the legal limit. 

Prosecutors charged the defendant with DUI, and he elected to proceed by way of bench trial. The Commonwealth presented the above facts at trial. However, it should be noted that the actual technician who drew his blood did not testify at the defendant’s DUI trial. Further, the technician who testified at this trial did not actually witness the blood draw of the defendant. At the conclusion of the trial, the defendant was found guilty of DUI. The defendant was sentenced to 6 months’ intermediate punishment, which included incarceration for 48 hours and 30 days of electronic and alcoholic monitoring. The defendant then filed timely post-sentence motions, which the trial court also denied. The defendant then filed a timely appeal. On appeal, the defendant raised several issues. For purposes of this blog, only the issue of whether his confrontation rights were violated when the Commonwealth did not call a witness who observed his blood being drawn will be addressed.

What is the Confrontation Clause? 

The Sixth Amendment to the United States provides a criminal defendant with the right “to be confronted with the witnesses against him.” Specifically, the Supreme Court of the United States has held that the Confrontation Clause protects a criminal defendant’s right to confront witnesses bearing testimony against him or her. Article 1, Section 9 of the Pennsylvania Constitution also provides this right to criminal defendants. 

The issue that has been heavily litigated throughout the years is what constitutes “testimony.” The United States Supreme Court has also ruled on this issue. And although there is not a clear definition of what testimonial means for purposes of the clause, courts have found that words can be “testimonial” if they are going to be used in a prosecution against a defendant. For example, if a complainant gives a statement to a detective about an alleged assault, that would be considered testimonial. However, if statements are introduced that were made during the course of an emergency, then they may not be testimonial. For example, 911 calls that deal with an ongoing emergency are often not considered testimonial and therefore may be admissible even without the live testimony of the person who made the call. For example, if someone were to call 9-1-1 to state that an individual was running down a street shooting at people, that statement could potentially be introduced at trial without the witness who uttered it because it had to do with an active emergency and therefore was not testimonial.  

It should also be noted that the United States Supreme Court has specifically held that forensic analyses are usually testimonial, and thus a defendant has a right to cross-examine those who performed these analyses. In other words, it is not sufficient for a prosecutor to merely introduce a technician’s report or an expert report into evidence. Further, the United States Supreme Court has also held that prosecutors cannot call surrogate witnesses to testify at trial. In order to comply with a defendant’s right to confrontation, the prosecutor must call the actual technician who performed the test. 

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court held that the defendant’s confrontation rights were violated when the Commonwealth failed to call any witnesses who actually observed the defendant’s blood draw. The Superior Court first had to determine whether the time of the defendant’s blood draw was a “testimonial factual statement.” The Superior Court held that it was because “[t]he plain language of the [DUI statute] here reveals that the time of the blood draw is an element that must be proven by the Commonwealth beyond a reasonable doubt. In the instant case, the time of the defendant’s blood draw was only introduced into evidence by the technician who testified at his trial. As such, because the Commonwealth failed to call the technician who actually drew the defendant’s blood (or anyone else who witnessed it), his right to confrontation was violated. Therefore, because of this violation, the defendant’s conviction was vacated, and he will receive a new trial. 

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