390 P.3d 1184
Alaska Ct. App.2017Background
- McCord was convicted in district court for driving under the influence under AS 28.35.030(a)(1) after blood tests showed tramadol and three benzodiazepines (quetiapine, clonazepam, 7-aminoclonazepam).
- Only clonazepam among the detected drugs is a statutory "controlled substance," so the State needed to prove impairment from clonazepam to satisfy the charged subsection.
- Washington State lab analyst Sarah Swenson performed benzodiazepine testing and reported clonazepam presence and concentration; analyst Lisa Noble performed initial screening, compiled the final report, and testified at trial about all results (including Swenson’s findings).
- Defense objected under the Sixth Amendment Confrontation Clause, seeking the opportunity to cross-examine Swenson per Melendez-Diaz; the trial judge allowed Noble to testify about Swenson’s results, treating the lab data as underlying facts for Noble’s opinion.
- The prosecution presented testimony (from Noble) that clonazepam’s therapeutic-range concentrations can cause impairment and that observed signs in McCord were consistent with benzodiazepine effects; the judge denied McCord’s motion for judgment of acquittal.
- The Court of Appeals held the Confrontation Clause was violated by admitting Swenson’s test results through Noble, reversed the conviction, but ruled the State’s evidence (including the erroneously admitted portion) was sufficient to support a conviction and therefore retrial is permitted.
Issues
| Issue | McCord's Argument | State's Argument | Held |
|---|---|---|---|
| Whether admitting a lab analyst’s test results via another analyst violated the Sixth Amendment Confrontation Clause | Test results showing clonazepam (performed by Swenson) are testimonial; McCord was entitled to cross-examine Swenson (relying on Melendez-Diaz) | Results were underlying data for Noble’s opinion about impairment, not independent testimonial evidence requiring Swenson live testimony | Confrontation Clause violated; Noble could not properly testify about Swenson’s clonazepam findings — conviction reversed |
| Whether evidence established clonazepam concentration capable of causing impairment | State failed to prove clonazepam level could impair driving | State presented expert testimony that therapeutic clonazepam levels can cause impairment | Evidence (including erroneously admitted material) was sufficient to show clonazepam concentration could impair driving |
| Whether State had to prove clonazepam was the sole cause of impairment | McCord: State must show clonazepam, not other drugs/conditions, solely caused impairment | State: law requires only that controlled substance be a substantial factor, not sole cause (Adams) | Held for State: only substantial-factor causation required; sole causation not necessary |
| Whether reversal bars retrial (i.e., whether evidence excluding the erroneously admitted material is sufficient) | McCord argued insufficiency warrants acquittal | State relied on Lockhart rule allowing consideration of entire record (including erroneously admitted evidence) when assessing sufficiency for retrial | Lockhart governs; reversal does not bar retrial because entire evidence was sufficient to support conviction |
Key Cases Cited
- Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (lab certificates and test results are testimonial; defendants entitled to cross-examine the analysts who performed tests)
- Lockhart v. Nelson, 488 U.S. 33 (1988) (on appeal, court may consider erroneously admitted evidence when assessing whether sufficiency of the entire record supports retrial)
- Adams v. State, 359 P.3d 990 (Alaska App. 2015) (DUI causation: prosecution must prove controlled substance was a substantial factor in impairment, not necessarily the sole cause)