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Case Basics
Docket No. 
Donald Bullcoming
New Mexico
Decided By 
(for the petitioner)
(Attorney General of New Mexico, for the respondent)
Facts of the Case 

Donald Bullcoming of New Mexico was sentenced to two years in prison for a felony aggravated DWI/DUI. The State introduced a blood alcohol test (blood draw) that was taken from Bullcoming under a search warrant issued following his refusal of the breath alcohol test. Bullcoming argued that the laboratory report of his blood draw results was testimonial evidence subject to the Confrontation Clause.

The New Mexico Court of Appeals affirmed the conviction, and upheld the trial court’s ruling that the forensic report was a business record. The court ruled that a blood alcohol report is admissible as a public record and that it presented no issue under the Confrontation Clause because the report was non- testimonial. The New Mexico Supreme Court granted discretionary review, but while the case was pending, this U.S. Supreme Court issued its 2009 decision in Melendez-Diaz v.Massachusetts, clarifying that forensic laboratory reports are testimonial and therefore the Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits. In applying the Melendez-Diaz ruling, the New Mexico Supreme Court held that the blood alcohol report was testimonial evidence, but it was admissible even though the forensic analyst who performed the test did not testify.


Can a blood-alcohol test admitted without the actual testimony of the person who prepared the results violate a criminal defendant's Sixth Amendment rights under the Confrontation Clause?

Decision: 5 votes for Bullcoming, 4 vote(s) against
Legal provision: confrontation clause

Yes. The Supreme Court reversed and remanded the lower court order in an opinion by Justice Ruth Bader Ginsburg. "The Confrontation Clause does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification," Ginsburg wrote, adding: "The accused's right is to be confronted with the analyst who made the certification." Justices Sonia Sotomayor and Elena Kagan joined all but Part 4 of the opinion; Justice Clarence Thomas joined all but Part 4 and Footnote 6. Sotomayor concurred in part, writing: "I agree with the Court that the trial court erred by admitting the blood alcohol concentration (BAC) report. I write separately first to highlight why I view the report at issue to be testimonial—specifically because its 'primary purpose' is evidentiary—and second to emphasize the limited reach of the Court's opinion." Meanwhile, Anthony Kennedy dissented, joined by Chief Justice John Roberts and Justices Stephen Breyer and Samuel Alito. "Far from replacing live testimony with 'systematic' and 'extrajudicial' examinations, these procedures are fully consistent with the Confrontation Clause and with well-established principles for ensuring that criminal trials are conducted in full accord with requirements of fairness and reliability and with the confrontation guarantee."

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BULLCOMING v. NEW MEXICO . The Oyez Project at IIT Chicago-Kent College of Law. 29 August 2015. <http://www.oyez.org/cases/2010-2019/2010/2010_09_10876>.
BULLCOMING v. NEW MEXICO , The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/2010-2019/2010/2010_09_10876 (last visited August 29, 2015).
"BULLCOMING v. NEW MEXICO ," The Oyez Project at IIT Chicago-Kent College of Law, accessed August 29, 2015, http://www.oyez.org/cases/2010-2019/2010/2010_09_10876.