Appeals Court (September 29, 2010)
A defendant's blood alcohol content result included in a hospital medical record is not testimonial in nature, and thus is not subject to the confrontation clause. Medical records continue to be admissible under G.L. c. 233, §79.
The portions of 501 CMR 2.00 et seq. that speak to certification requirements of blood test analysts only apply to those analysts working for the Department of State Police. The references to the regulations in G.L. c. 90, §24 (1) (e) apply only to testing done at the request of law enforcement; they do not apply to testing completed by medical personnel in hospitals.
Any discrepancies in the chain of custody for hospital blood samples go to the weight of the evidence and not its admissibility.
Any disparities in the results from the hospital and crime lab analyses go to the weight of the evidence and not its admissibility.
The defendant was convicted in Superior Court of motor vehicle homicide. He appeals his conviction, arguing that the admission of the hospital records, which included a blood alcohol result, violated his right to confrontation because the analyst responsible for processing the blood sample was unavailable for cross-examination.
Medical records generated for evaluation and treatment purposes do not constitute testimonial evidence triggering a constitutional right of confrontation. The Court in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), explicitly excluded medical records from "this core class of testimonial statements. Medical reports created for treatment purposes ... would not be testimonial under our decision today."
In regards to a blood alcohol content result contained within a hospital medical record, Massachusetts courts have previously concluded that such information implicates no right of confrontation. "Medical records do not have testimonial character because they are procured neither for litigation purposes nor through law enforcement interrogation, nor made in anticipation of use in the investigation or prosecution of a crime." Commonwealth v. Lampron, 65 Mass. App. Ct. 340 (2005).
Because there is no Sixth Amendment right of confrontation with respect to hospital medical records and the blood alcohol result contained therein, the records continue to be admissible under G.L. c. 233, §79 which states:
Records kept by hospitals [as required by statute] ... may be admitted ... as evidence in the courts of the commonwealth so far as such records relate to the treatment and medical history of such cases.
Regulations controlling blood test analysts:
The defendant next argues that the blood analyses done by the hospital and the crime labs, both of which were based on the original draw at the hospital, were unreliable because the hospital sampling process did not comply with statutory and regulatory requirements specifically found in G.L. c. 90, §24(1)(e) and 501 CMR 2.00 et seq. The Court disagreed, highlighting that §24(1) (e) allows into evidence the result of a blood alcohol test to show whether a defendant was operating under the influence. These provisions relate only to the testing done at the direction of the police, and they do not apply to blood draws ordered as part of a standard treatment protocol in a hospital. Additionally, the CMRs regulate only those blood test analysts working for the Department of State Police and "do not apply, and have no bearing on, testing completed by medical personnel in hospitals."
Weight of the evidence versus admissibility:
The defendant argues that the blood alcohol results were unreliable because: 1) the values from the two analyses were disparate; and 2) because the chain of custody for the hospital blood sample was not established. The Court disagreed because, "[h]ospital records, by their nature, are presumed to be reliable." Commonwealth v. Riley, 22 Mass. App. Ct. 698 (1986). "Alleged defects in the chain of custody usually go to the weight of the evidence and not its admissibility." Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224 (1992). Similarly, the disparities in the results from the hospital and crime lab analyses go to the weight and not the admissibility.
Note: The Court in this case also: 1) allowed the emergency room physician to be qualified as an expert witness and testify to the significance of the blood alcohol content result; and 2) upheld the judge's instruction to the jury that OUI alone is not enough to constitute negligence but coupled with other evidence may be enough to prove negligence.