IN THE SUPREME COURT STATE OF ARIZONA

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1 IN THE SUPREME COURT STATE OF ARIZONA STATE OF ARIZONA ex rel. WILLIAM G. MONTGOMERY, Maricopa County Attorney, vs. Petitioner/Appellee, THE HONORABLE RONALD KARP, Justice of the Peace Pro Tempore, WEST MESA JUSTICE COURT, Arizona Supreme Court No. CV PR Court of Appeals Division One No. 1 CA-CV Maricopa County Superior Court No. LC Respondent Judge/ Appellee, MATTHEW VORIS, Real Party in Interest/Appellant BRIEF OF AMICUS CURIAE ARIZONA ATTORNEYS FOR CRIMINAL JUSTICE FILED IN SUPPORT OF REAL PARTY IN INTEREST MATTHEW VORIS NESCI & ST. LOUIS KOPLOW LAW FIRM /s/ Joseph P. St. Louis Joseph P. St. Louis 216 North Main Avenue Tucson, Arizona Counsel for Amici Curiae /s/ Lawrence S. Koplow Lawrence S. Koplow 201 North Central Avenue, 33 rd Floor Phoenix, Arizona Counsel for Amici Curiae

2 TABLE OF CONTENTS I. TABLE OF AUTHORITIES. ii II. INTRODUCTION.. 1 III. INTERESTS OF AMICUS CURIAE... 1 IV. SUMMARY OF ARGUMENT. 2 V. STATEMENT OF FACTS... 5 VI. ARGUMENTS... 9 A. Reason This Court Should Grant Review... 9 B. It Is Impossible To Make An Independent Determination That A Particular Person Had A Particular Blood Alcohol Concentration Based Upon The Paperwork Generated By The Laboratory s Software System C. This Court s Ruling Allowing A Witness To Testify To An Opinion Based Upon Another Individual s Autopsy Report and Accompanying Photographs Does Not Apply to Blood Test Results, Because They Are Testimonial In Nature... D. The Prosecution Failed To Meet Its Burden Of Proving Ms. Kogler (The Non-Testifying Witness) Was Unavailable And That There Was A Prior Opportunity For Cross-Examination. Thus, Ms. Valdez s Surrogate Testimony Is Barred VII. CONCLUSION ii

3 TABLE OF AUTHORITIES CASES Barber v. Page, 390 U.S. 719, (1968). 35 Bullcoming v. New Mexico, 564 U.S.,131 S. Ct. 2705, 2711, (2011)... 1, 2, 3, 14, 27 State v. Ceja, 113 Ariz. 39, 41, 546 P.2d 6, 8 (1976) 10 Crawford v. Washington, 541 U.S. 36, 68 (2004) 9, 35 Maryland v. Craig, 497 U.S. 836, 845 (1990) 9 State v. Archie, 171 Ariz. 415, 417, 831 P.2d 414, 416 (Ct. App. 1992) State v. Edwards, 136 Ariz. 177, 182, 665 P.2d 59, 64 (1983) 1, 5, 35, 36, 37 State v. Gonzales, 181 Ariz. 502, 509, 892 P.2d 838, 845 (1995) 38 State v. Joseph, 230 Ariz. 296, 283 P.3d 27 (2012) 4, 8, 23, 26, 30, 33 State ex rel. Montgomery v. Karp, 236 Ariz. 120, 336 P.3d 753, 757 (Ct. App. 2014) 26 State v. Medina, 178 Ariz. 570, 576, 875 P.2d 803, 809 (1994) 37 State v. Montano, 204 Ariz. 413, , 65 P.3d 61, (2003)... 35, 38 Transamerica Ins. Co. v. Trout, 145 Ariz. 355, 360, 701 P.2d 851, 856 (App. 1985)... 3 iii

4 Valuenzuela v. State, 30 Ariz. 458, 248 P. 36 (1926) Williams v. Illinois, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012)... 28, 29, 31, 34 STATUTES A.R.S , Uniform Act to Secure the Attendance of Witnesses. 37 LEGAL TREATISES Kenneth S. Broun, McCormick on Evidence (Sixth ed. 2006) 36 SCIENTIFIC TREATISES Stafford, Chromatography, in Principles of Forensic Toxicology 92, 114 (B. Levine 2d ed. 2006)... 3 iv

5 I. INTRODUCTION This case is another chapter in the ongoing struggle to define the legal boundaries imposed by the Confrontation Clause of 6 th Amendment to the United States Constitution when the prosecution attempts to use surrogate forensic testimony. However, the Amici Curiae submit that this particular chapter has already been written, and the issues were resolved by the United States Supreme Court s decision Bullcoming v. New Mexico. 1 Here, as was the case in Bullcoming, the prosecution seeks to provide surrogate testimony by a person lacking essential information, making her incapable of providing an independent measurement. In addition, the Appellate Court s decision fails to recognize Arizona s firmly established constitutional prerequisite for allowing substitute testimony the State proving a witness unavailability after specific and genuine efforts to obtain that individual s presence. 2 II. INTERESTS OF AMICUS CURIAE Amicus curiae Arizona Attorneys for Criminal Justice is a statewide not-for-profit membership organization of criminal defense lawyers, law students, and associated professionals dedicated to protecting the rights of 1 Bullcoming v. New Mexico, 564 U.S.,131 S. Ct. 2705, 2711, 180 L. Ed. 2d 610 (2011). 2 See State v. Edwards, 136 Ariz. 177, 182, 665 P.2d 59, 64 (1983). 2 See State v. Edwards, 136 Ariz. 177, 182, 665 P.2d 59, 64 (1983). 1

6 the accused in the courts and in the legislature, promoting excellence in the practice of criminal law through education, training and mutual assistance, and fostering public awareness of citizens' rights, the criminal justice system, and the role of the defense lawyer. Amicus offers this brief in support of the Real Party in Interest Voris because the issue presented touches the core of their shared mission to defend and preserve individual liberties guaranteed by the United States and Arizona Constitutions. III. SUMMARY OF ARGUMENTS An analyst who is not involved in the process of creating a blood alcohol measurement has inadequate information to make an independent conclusion, when merely provided the paperwork generated by laboratory s software. 3 The reliability of any blood alcohol concentration estimate is entirely dependent on the actions taken by the individual measuring the blood concentration. Errors affecting the accuracy of blood test results can 3 Bullcoming, 131 S. Ct. 2705, 2711 (2011). 2

7 be introduced (intentionally or through carelessness) in every step in the process. 4 A surrogate witness (such as Ms. Valdez) who took no part in the actual measurement, who is merely reviewing the documents associated with it, has no way of independently verifying that the printed records are correct. Ms. Kogler s (the analyst who performed the measurement) documentation does not provide what specific steps she followed when conducting the measurement at issue. Thus, at trial, the Court, the Jury, and Mr. Voris will have no insight as to what steps Ms. Kogler actually utilized 5 in her measurement. Ms. Kogler s documentation does not inform us as to whether she actually understood the testing protocol, followed it, or what subjective judgments she made in producing this measurement. 4 Bullcoming, supra, 131 S. Ct. at 2711, n. 1 ( Several steps are involved in the gas chromatograph process, and human error can occur at each step; In order to perform quantitative analyses satisfactorily and... support the results under rigorous examination in court, the analyst must be aware of, and adhere to, good analytical practices and understand what is being done and why. Stafford, Chromatography, in Principles of Forensic Toxicology 92, 114 (B. Levine 2d ed.2006). See also McNair 137 ( Errors that occur in any step can invalidate the best chromatographic analysis, so attention must be paid to all steps. ); D. Bartell, M. McMurray, & A. ImObersteg, Attacking and Defending Drunk Driving Tests 16:80 (2d revision 2010) (stating that 93% of errors in laboratory tests for BAC levels are human errors that occur either before or after machines analyze samples ). 5 See generally Transamerica Ins. Co. v. Trout, 145 Ariz. 355, , 701 P.2d 851, (App. 1985)(holding for purposes of hearsay unavailability that a witness was not qualified because [n]ot knowing how the reports were made, he could not be subjected to meaningful cross-examination. Id. 3

8 The State s surrogate witness, Ms. Valdez, speaking in Ms. Kogler s place, has assumed quality assurance, adequate attention, impartiality and sound scientific judgment were all employed in this analysis. These assumptions, however, do not satisfy the Confrontation Clause. Accordingly, there is no independent evidence to confirm the original measuring analyst s result, such as the photos included with the autopsy report in State v. Joseph. 6 In addition, the blood alcohol measurement produced by the nontestifying analyst [Kogler] is purely testimonial. The purpose of Ms. Kogler s analysis was to provide a blood alcohol measurement for use in prosecuting Mr. Voris. The measurement serves no other purpose. In this manner, her work is the equivalent of an affidavit made for the purpose of proving the guilt of Mr. Voris at a trial. Ms. Kogler, as member of the Scottsdale Crime Laboratory obviously realized that her work (a reported blood-alcohol level over a statutory limit) would be used solely for the Ariz. 296, 298, 10, 283 P.3d 27, 29 (2012). 4

9 purpose of Mr. Voris prosecution. Consequently, her work is the definition of a testimonial statement. The underlying record also demonstrates that the prosecution failed to meet its burden of proving the non-testifying witness [Kogler] was truly unavailable. In the absence of a prior opportunity for cross-examination, as was the case here, Arizona law requires much more than the mere avowal that a witness is no longer working in a crime lab to permit substitute testimony during a jury trial. 7 IV. STATEMENT OF FACTS 1. Real Party in Interest Matthew Voris was arrested on suspicion of Driving Under the Influence on January 15, The matter was a misdemeanor and proceeded through a court of limited jurisdiction. 2. Scottsdale Police toxicologist Lynette Kogler analyzed the blood on January 28, 2010 and prepared a report detailing her findings A jury trial was eventually scheduled for April 5, Less than a day before the jury trial was set to begin, over three (3) years after the blood was drawn, the State filed a motion asking that a different analyst (Jennifer Valdez) be permitted to testify to the report prepared by Ms. Kogler (who actually performed the blood alcohol measurement) See Edwards, 136 Ariz. 177, (1983). 8 R.T., Motion Hearing, , P. 22, ln 13-21, P. 36, ln R.T., Motion Hearing, , P R.T., Motion Hearing, , P. 7, ln 4 P. 17, ln 7. 5

10 5. Petitioner objected on the grounds that testimony by surrogate analyst would violate his right to Confrontation pursuant to the 6 th Amendment of the United States Constitution At a pretrial hearing, the State presented the testimony of Jennifer Valdez in support of their position that she be permitted to present the measurement conducted by Ms. Kogler. Ms. Valdez testified, inter alia: a. Ms. Kogler been gone from the lab for two-and-a-half, almost three years because she is in graduate school in another state. 12 b. My responsibility is to oversee the procedure. I often oversaw individual blood runs. In this particular case, I was not the technical reviewer of this case. Another analyst did that. 13 c. The only verification that the protocol is followed is her signature upon the completion that verifies that she has followed the procedure correctly, but there is no specific checklist. 14 d. Ms. Valdez s testimony was based on the following documentation i. Forensic Blood Alcohol Phase Sheet 15 ii. Ms. Kogler's Notes 16 iii. Final Report 17 iv. Chromatograms 18 v. QA Document The court asked Ms. Valdez a series of questions relating the facts and data she was relying upon for her opinions: 11 R.T., Motion Hearing, , P. 12, ln 19 P. 13, ln R.T., Motion Hearing, , P. 27, ln R.T., Motion Hearing, , P. 28, ln R.T., Motion Hearing, , P. 29, ln R.T., Motion Hearing, , P. 30, ln R.T., Motion Hearing, , P. 35, ln R.T., Motion Hearing, , P. 36, ln R.T., Motion Hearing, , P. 38, ln R.T., Motion Hearing, , P. 41, ln 22 P. 42, ln 18. 6

11 Did you see the way that the seals were or were not broken prior to gas chromatograph being used on the vials? I have no recall of that. 20 Do you have any idea how long Ms. Kogler was running the batch, start time, end time, anything like that? I can obtain that information from looking at the documents, but I do not recall. And, again, from personal memory and I'm just going through a variety of things -- do you have any idea how many vials were in the batch? Again, I can obtain that from the paperwork, but, no, I was not present. Not personal memory? No. And do you have any personal memory of whether there were any problems with any other vials in that batch? I have no personal knowledge of that. 21 **** Are there other documents that you have looked at in preparation for today's case? I have looked only at the quality assurance packet and the chromatograms and notes for this individual. 22 So did Ms. Kogler make some notes about the -- her work in running this? Does she have any personal notes that you looked at? 20 R.T., Motion Hearing, , P. 33, ln R.T., Motion Hearing, , p. 33, ln 22 34, ln R.T., Motion Hearing, , p. 34, ln 24 p. 35, ln 3. 7

12 She took notes of the packaging of the item and the labeling of the item and the estimation of the volume of the blood. That is what I have reviewed for this. 23 **** And do you have any way of knowing when this document was prepared? For example, I see a date that says January 26th on it. Does that date tell me anything? That is probably the date of the of the analysis request, not the date the job -- the document was actually generated. The document isn't completed until the analyst actually finalizes their signature on it. And that would be the date also that the report is generated The trial court held that the substitute witness would not be permitted to testify because it would be a violation of the confrontation clause. 25 The trial court reasoned, inter alia, that: a) So I'm going to make a finding for these case facts that Ms. Kogler was not available to the Defense, had been -- had resigned from the Scottsdale lab in order to pursue her graduate studies and the like. And, therefore, that Defense could not have some meaningful opportunity for an examination of her. b) I'm going to find that State v. Joseph, however, is distinguishable. 26 What I'm finding is that the blood test and the blood test results are different than an autopsy report. 27 c) the State realized that a witness was not available, and that was as early as the summer of they've had from that time period until now, which is about two-and-a-half 23 R.T., Motion Hearing, , p. 35, ln R.T., Motion Hearing, , P. 36, ln R.T., Motion Hearing, , P. 58, ln R.T., Motion Hearing, , P. 55, ln R.T., Motion Hearing, , P. 56, ln

13 years, to --I'm using the word fix because, I guess, I'm not more verbal than that -- fix the problem by rerunning the vial with an analyst who is in place. 28 V. ARGUMENTS A. Reason This Court Should Grant Review. The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. 29 The Confrontation Clause requires that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. 30 As the United States Supreme Court determined in Bullcoming, allowing the prosecution to present evidence through a surrogate witness prevents such a meaningful cross-examination. Here, the Court of Appeals has created a rule, which permits the State to bypass any meaningful challenge to their evidence in contrast to Arizona s long history barring experts from simply providing surrogate 28 R.T., Motion Hearing, , P. 58, ln 25 p. 59, ln Maryland v. Craig, 497 U.S. 836, 845 (1990). 30 Crawford v. Washington, 541 U.S. 36, 61 (2004). 9

14 testimony. 31 If left in place, the Appellate Court s ruling would enable a system where one forensic witness could be used to hide the negligence or wrongdoing of their colleagues. Such a system would eliminate the protections guaranteed by the Confrontation Clause of the 6 th Amendment. B. It Is Impossible To Make An Independent Determination That A Particular Person Had A Particular Blood Alcohol Concentration Based Upon The Paperwork Generated By The Laboratory s Software System. In Bullcoming v. New Mexico 32, the United States Supreme Court held that before the results of a blood test may be admitted into evidence, the analyst who performed the testing must be made available for crossexamination. The Court rejected the notion that [Bullcoming s] right of confrontation was preserved by the state calling an individual qualified as an expert witness with respect to the gas chromatograph machine who did not perform the testing at issue for live, in-court testimony, and, thus, was available for cross-examination regarding the operation of the... machine, the results of [Bullcoming s] BAC test, and the [testing laboratory s] established laboratory procedures. Id., 131 S. Ct. at See State v. Ceja, 113 Ariz. 39, 41, 546 P.2d 6, 8 (1976)(Arizona Supreme Court granted a new trial because trial court permitted the prosecution s witness (from the City of Phoenix Crime Laboratory) to testify that another employee, of the crime laboratory, made certain ballistic comparisons of bullets from two guns known to have been in appellant's possession and with bullets found at the scene of the crime.) U.S.,131 S. Ct. 2705, 2711, 180 L. Ed. 2d 610 (2011). 10

15 (quoting State v. Bullcoming, 2010-NMSC-007, 147 N.M. 487, 226 P.3d 1, 9-10 (2010)). It is not enough to call a witness, the Court held. The witness called must be the individual who performed the blood test, or the results are inadmissible. This holding was based, in part, on the nature of a blood test report. Any blood test report contains representations about actions taken by the analyst, which require that she be made available for cross-examination before the results may be admitted into evidence: [The analyst who performed the testing, in his blood test report,] certified that he received Bullcoming s blood sample intact with the seal unbroken, that he checked to make sure that the forensic report number and the sample number correspond[ed], and that he performed on Bullcoming s sample a particular test, adhering to a precise protocol. He further represented, by leaving the [r]emarks section of the report blank, that no circumstance or condition... affect[ed] the integrity of the sample or... the validity of the analysis. These representations, relating to past events and human actions not revealed in raw, machine-produced data, are meet for crossexamination. Id., 131 S. Ct. at It is clear that the blood test report prepared by Ms. Kogler is: A document created solely for an evidentiary purpose, Melendez Diaz clarified, made in aid of a police investigation, [which] ranks as testimonial. 557 U.S., at, 129 S.Ct., at 2532 (forensic reports available for use at trial are testimonial statements and certifying analyst is a witness for purposes of the Sixth Amendment ). 11

16 Id, 131 S. Ct. at In the case at hand, the state seeks to perform an end-run around the Supreme Court s holding in Bullcoming. They are attempting to admit the actual and exact blood test result obtained by Ms. Kogler (the absent analyst who performed the test). They are asking be allowed to have Ms. Valdez, an analyst who did not perform the testing at issue, and who was not present when the testing occurred, testify to an independent expert opinion that Mr. Voris blood alcohol concentration is the same value Ms. Kogler obtained. They then wish to introduce Ms. Kogler s test result itself, by having Ms. Valdez testify to that reported value, not because the value is correct and accurate, but because it is the basis of Ms. Valdez s independent expert opinion. It matters greatly then, whether the documents available actually allow one to make an independent determination that a particular person has a particular blood alcohol concentration. Here, they do not, and the proffered testimony is improper surrogate testimony regarding the testing analyst s work, without fulfilling the state s requirement to produce the testing analyst for cross-examination. To determine whether Ms. Valdez may testify, this Court must first determine whether any analyst is capable of forming an independent opinion 12

17 that a specific person (Mr. Voris) had a specific alcohol concentration from the paperwork generated by the laboratory s software system. To make this determination, the Court must decide whether the information available allows for the exercise of independent judgment, or limits a reviewing witness to accepting and repeating the test results from the analyst who actually performed the testing at issue. If the witness is limited to accepting and repeating the previous analyst s work, and is not making an independent judgment, then she merely serves as a surrogate for the absent analyst, and her testimony is not permissible. That is the situation before the Court herein. The primary flaw with the Court of Appeals decision is the judges premise that someone who works in a crime laboratory, who did not analyze the tests samples and who was not present when testing was performed, is capable of looking at paperwork printed out by the laboratory s software system at an earlier point in time, and forming an independent opinion that the printed document demonstrates a particular alcohol concentration for a particular individual. As recognized by the United States Supreme Court in Bullcoming v. New Mexico, supra, no one can do that. By their nature, the documents being reviewed are incapable of demonstrating that the samples being tested were prepared properly, that what is purported to be the result 13

18 of the testing of Mr. Voris blood is actually a test of his blood, or that the software is correctly printing out the information the name, the vial number, or even the result obtained. The reliability and accuracy of any blood alcohol concentration estimate is entirely dependent on the actions taken by the individual analyzing the blood when she creates the sample that is tested. Errors affecting the accuracy of blood test results can be introduced (intentionally or through carelessness) in every step in the process. 33 The measurement process utilizes a type of production line chemistry batch processing. Batch processing, is a version of assembly line production where things are produced in groups. In a typical blood alcohol analysis, a full batch will usually require the analyst to process in excess of 90 vials. At some point, days, weeks or even months after they have been collected, the analyst receives a number of blood kits, each of which generally contains two gray-topped tubes of blood that were purportedly collected from an arrestee. As she processes this group of blood samples, the analyst will take notes (pictured below) regarding the contents of each blood kit, attempting to repeat the information recorded by the arresting law 33 Bullcoming, supra, 131 S. Ct. at 2711 ( Several steps are involved in the gas chromatograph process, and human error can occur at each step. ) 14

19 enforcement agency, and describing the contents of the box. There is no double check by a different person, to ensure that the testing analyst has entered the correct information for the correct sample. The analyst then prepares a run sheet, in which she attempts to correctly enter information into the computer as to which samples will be placed into which slots on the loading tray called a carousel which holds up to 110 samples. For example, she would type into the computer information that Mr. Voris s blood samples will be located in particular location on the carousel, e.g., slots 52 and

20 The analyst then prepares the 90 plus samples for testing. For each arrestee being tested, she opens one of the grey-topped tubes from the blood kit, and pours a portion of the blood into a vial. From this first vial, she must then measure out the correct amount of blood into a second vial, called a headspace vial (pictured below), which is the vial actually being tested. When preparing the headspace vials, the analyst also must dispense the correct measure of a second liquid, an internal standard, used in every sample tested, into the headspace vial. If the amount of blood dispensed into the headspace vial is incorrect, or the amount of internal standard dispensed into the headspace vial is incorrect, the alcohol concentration reported will be incorrect. Bullcoming v. New Mexico, supra, 131 S. Ct. 2711, n. 1 (citations omitted). (In Colorado, a single forensic laboratory produced at least 206 flawed blood-alcohol readings over a three-year span [by using] improper amounts of the internal standard, causing the chromatograph 16

21 machine systematically to inflate BAC measurements. The analyst s error, a supervisor said, was fairly complex. ). Whether the headspace vials tested in a particular defendant s case contained the correct amounts of both liquids cannot be ascertained by reviewing the paper records from a single blood run after the fact; the errors in the Colorado laboratory were not discovered until three years after the fact, when two of the analysts failed proficiency tests, by testing samples prepared by an outside agency. 34 When preparing the headspace vials, the analyst handwrites a portion of the arresting law enforcement agency s case number (or perhaps the entire case number), onto the side of the glass vial with a sharpie. This is the only indication of which blood sample is in which vial on the carousel. Once all of the headspace vials have been prepared, the analyst must place them into the correct slots in the carousel (pictured below) designated on the run sheet. No second individual double-checks the placement of the vials to ensure that they were placed in the correct slots. 34 Id. (http://www.gazette.com/articles/report police discuss.html). 17

22 Once the headspace vials have all been loaded into the carousel, each vial in turn is heated until a gas is formed from the liquids in the headspace vial. A sample of this gas is then injected into the gas chromatograph through an autosampler, which, when it functions correctly, will inject samples from the headspace vials into the gas chromatograph in sequential order. The process is automated because testing all of the samples in a blood run may take up to 12 hours. The analyst does not observe the equipment during the testing; in fact, no one does, as blood runs typically end well after all employees have left the crime lab. After a sample is injected into the gas chromatograph, it is split in half, and each half of the gas travels through one of two separate tubes, called columns. At the end of each column is a flame ionization detector, 18

23 which burns the gas coming through the column. When organic solvents (such as, e.g., ethyl alcohol, isopropanol or toluene) burn in the flame ionization detector, the computer system attached to the gas chromatograph records the time that the solvent burned, and measures the voltage produced. The laboratory s Laboratory Information Management System processes this information through software programs, such as JusticeTrax, and a graph of the test, called a chromatogram (pictured below), is printed. 19

24 Similar graphs are printed for the samples used to calibrate the gas chromatograph at the beginning of the blood run (calibrators), the controls (samples containing a known range of values) tested during the run, a negative control, including just the internal standard (the blank), and a vial containing a number of substances chemically similar to ethanol (these graphs are collectively, along with documentation on the calibrators and controls, is referred to as a quality control packet ). 20

25 When the paper records are read by the analyst, usually on the next work day, she attempts to correctly record the values obtained in a summary sheet called an Alcohol Face Sheet (pictured below). The headspace vials, with the information written on their sides indicating which sample is contained in which slot of the carousel, are then 21

26 discarded without a second individual double checking that the vials were placed in the slots that the analyst believes they were placed into. The accuracy of the printed results of the blood testing performed is entirely dependent on the vials being correctly placed into the slots the analyst has told the computer that they would be inserted into. If an analyst tells the computer that vials 52 and 53 are the blood samples that come from Mr. Voris, the gas chromatograph will report those samples as having his case number, that is, as being his blood tests results, whether or not his blood samples are actually in vials 54 and 55. There is no way to read a printout from the laboratory s software and independently determine that a particular chromatogram reflects the alcohol concentration of a particular person. The only way to reach this conclusion is to take it on faith that the analyst, Ms. Kogler, correctly labeled the vials that were tested, and placed them into the carousel in the correct sequence that the contents of vials 52 and 53, really do contain Mr. Voris s blood. No one, including Jennifer Valdez, possesses the ability to look at what was printed out by the computer and determine that the unknown samples were placed where they were supposed to be placed, or which vials (if any) contained Mr. Voris blood. 22

27 The issue herein is compounded by the Scottsdale Crime Laboratory s ongoing difficulties with the accuracy and reliability of their printed blood test results. On February 14, 2013, Jennifer Valdez, the analyst at issue herein and the lab s former technical leader, wrote to Perkin-Elmer, the manufacturer of the gas chromatographs used in Scottsdale, and asked their software engineers to create new software for the Scottsdale laboratory, because, since the installation of the gas chromatograph used to test Mr. Voris blood in 2009, the lab has a software program that does not always print the data correctly. It will sometimes print wrong file information or vial numbers. The new software was requested because the lab cannot fix it when it has issues. (http://www.courtminutes.maricopa.gov/docs/criminal/082013/m p df, at p. 15). As a result of these software issues, there is no way to determine after the fact that the printed records are accurate. A second analyst has no way of independently verifying that the printed records are correct there is no independent evidence that may be used to confirm the analyst s opinion, such as the photos included with the autopsy report in State v. Joseph, 230 Ariz. 296, 298, 10, 283 P.3d 27, 29 (2012). If one cannot determine that the written records are accurate, one cannot use those 23

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