The United States Supreme Court’s recent decision in Melendez-Diaz v. Massachusetts establishes that a defendant’s Sixth Amendment right of confrontation extends to the lab-technician who creates a report that is used as evidence in court. In Melendez-Diaz, the Supreme Court overturned the defendant’s drug conviction because the lab technician that had run the analysis was not available for cross-examination at trial. The Court characterized the evidence as “testimonial” in nature, which brought it within the scope of the Supreme Court’s ruling in Crawford v. Washington. In Crawford, the Court held that in order for testimonial evidence to be admitted, the defendant must have an opportunity to cross-examine the witness who is providing it.

Melendez-Diaz may also be applicable to DUI cases when the Commonwealth attempts to introduce breathalyzer evidence. While the prosecution typically calls the breathalyzer operator to testify, they tend to rely on affidavits to establish that the machine has been tested and is reliable. Melendez-Diaz suggests that those affidavits might be insufficient, and that the person who did the testing and maintenance of the machine must be made available for cross-examination by the defendant.