When a client hands me a Michigan State Police blood alcohol report, most people assume the person who signed it is the person who tested the blood. The report carries one name, one signature, and one number. In many cases, however, the report itself tells a different story if you read it closely, and that difference can matter a great deal at trial.
I recently argued two motions in limine on the morning an OWI jury trial was set to resume. Both motions centered on a single question: can the prosecution prove a driver's blood alcohol content through a forensic scientist who did not handle the specimen, did not prepare it, did not run the instruments, and did not observe the analysis? The hearing was livestreamed on YouTube, and that same evening it became the subject of a program on the Coolin With Colin YouTube channel. The video is available here.
The case was ultimately resolved without an OWI conviction. My client pleaded to public intoxication and disorderly conduct, offenses that carry no points and no abstract to the driving record, which allowed him to keep his commercial driver's license. Every case turns on its own facts, and no motion guarantees a particular outcome. But the issues raised in this case arise in blood cases across Michigan, and they are worth explaining in detail.
What the Laboratory Report Said, and What It Did Not Say
The driver in this case was arrested for operating while intoxicated under MCL 257.625. An attempted breath test produced no result, and he agreed to a blood draw. Two tubes of blood were drawn at a hospital, sealed in a kit, and mailed to the Michigan State Police laboratory in Lansing.
The laboratory report reported a single result from the first tube and stated that the second tube was not analyzed. The report was signed by a forensic scientist in the Toxicology Unit. It did not say that she performed the analysis. Instead, it contained language that appears on Michigan State Police toxicology reports, stating that the signing analyst performed the interpretation of the data and authorization of the results, and that "Other staff members may have performed laboratory activities concerning evidence associated with this report."
That sentence is the starting point for the entire issue. The defense demanded the laboratory's underlying data in writing in June, together with a written objection to the use of any report in place of live testimony. What arrived instead, the day after the jury was sworn, was the signing analyst's curriculum vitae and a chain of custody report. The chain of custody report recorded every handling of the evidence. One employee received the kit by first class mail, broke it down, and destroyed the sealed container in the process. A second employee removed both tubes from storage "For Exam" and returned them six hours later. The signing analyst's name did not appear anywhere in the handling record. Her curriculum vitae listed her work location at a different laboratory, in Detroit, and showed that she had been assigned to blood alcohol work since October 2024.
The chain of custody report also raised a factual question of its own. The laboratory report stated that the second tube was not analyzed, yet the second tube was removed "For Exam" along with the first. Only the run data could show whether that tube was opened, sampled, or run, and those data had not been produced.
Two days after the jury was sworn, at 4:32 p.m. on a Friday, an amended witness list added the testing analyst's name. The employee who received and broke down the kit was never listed.
The Confrontation Clause and Forensic Reports
The Sixth Amendment and Const 1963, art 1, § 20 guarantee an accused the right to confront the witnesses against him. The Clause applies to testimonial hearsay: the out-of-court statement must be testimonial, and it must be offered for its truth. Smith v Arizona, 602 US 779 (2024). The Michigan Supreme Court has described a statement as testimonial when it was made under circumstances that would lead an objective witness reasonably to believe it would be available for use at a later trial. People v Washington, 514 Mich 583 (2024).
The United States Supreme Court has applied these principles to forensic evidence more than once. In Melendez-Diaz v Massachusetts, 557 US 305 (2009), the Court held that certificates of analysis identifying a seized substance were testimonial. In Bullcoming v New Mexico, 564 US 647 (2011), the Court held that a blood alcohol report prepared for a drunk driving prosecution was testimonial even though it was unsworn. The State in Bullcoming had introduced the report through an analyst who had not participated in or observed the test, and the Court held that "surrogate testimony of that order does not meet the constitutional requirement." The Michigan Court of Appeals reached a similar conclusion regarding DNA reports in People v Payne, 285 Mich App 181 (2009), where the testifying witnesses had not conducted the testing, examined the evidence, or reached the conclusions in the reports.
Bullcoming also recognized something every forensic practitioner knows: gas chromatography is a multi-step human process, and "human error can occur at each step." The Court explained that an analyst's representations about the testing, "relating to past events and human actions not revealed in raw, machine-produced data, are meet for cross-examination." A chromatogram does not tell you which tube was sampled, whether the correct volume of blood and internal standard was pipetted, or whether calibrators and controls were placed where the sequence says they were.
How Smith v Arizona Changed the Basis-Testimony Argument
For years after Bullcoming, a common way around the decision was to present the absent analyst's work as the "basis" for a substitute expert's own "independent" opinion. The theory was that the underlying statements were not offered for their truth, but only to explain how the testifying expert reached a conclusion.
Smith v Arizona rejected that theory. The Court held that when an expert conveys an absent analyst's statements to support an opinion, and those statements provide support only if they are true, the statements come into evidence for their truth. As the Court put it, "truth is everything when it comes to the kind of basis testimony presented here." The Court added that the rule applies even where the testifying expert's opinion "merely replicates, rather than somehow builds on," the testing analyst's conclusions, and that the State may not introduce an absent analyst's statements "through a surrogate analyst who did not participate in their creation."
Accuracy requires an important qualification. Smith resolved the truth question, but it did not decide whether the particular records in that case were testimonial. The Court sent that question back to the state courts and directed that the inquiry focus on what the out-of-court statements actually were and why they were created. Some laboratory records may be generated primarily for internal quality control or accreditation, and the testimonial question must be examined record by record. In this case, part of the defense argument was that the prosecution could not carry its burden on that question when it had never disclosed the records on which its witness relied.
Smith also identified what a witness in the reviewer's position may legitimately do. She may testify from personal knowledge about how the laboratory typically operates, explain what accreditation means, and answer hypothetical questions. But in that event, the State "would then have to separately prove the thing assumed." The Court reiterated, quoting Crawford v Washington, 541 US 36 (2004), that the Clause commands "not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination."
The Reviewer Argument and the Bullcoming Concurrence
The most common response to a surrogate-analyst objection relies on Justice Sotomayor's concurrence in Bullcoming. She noted that the case was "not a case in which the person testifying is a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue." Her illustration of a different case involved a supervisor who observed an analyst conducting a test. A concurrence is not the holding of the Court, and the concurrence did not decide how such a case should come out.
When I evaluate a reviewer argument, I look at what the reviewer actually did. In this case, the defense was informed that the signing analyst reviewed the instrument output remotely after the analysis was complete, without preparing samples or observing the run. That kind of after-the-fact review resembles what the substitute expert did in Smith, where the testifying expert prepared by reviewing the absent analyst's report and notes. Under Smith, the decisive question is not whether the witness has some connection to the paperwork. It is whether her opinion depends on the truth of someone else's statements about what was done to the specimen.
The defense did not argue that every person who touched the specimen must testify. In Melendez-Diaz, the Court explained that the prosecution decides "what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live." The point was narrower: if the prosecution wants to prove the receipt, condition, and breakdown of a sealed kit, it must do so through a witness with personal knowledge, not through a reviewer reciting another employee's records.
MCR 6.202 and the Defense Objection
Michigan's court rules reinforce the constitutional analysis. Under MCR 6.202(C)(1), a laboratory report may be admitted in place of live testimony, with the same effect as if the person who performed the analysis had testified, if proper notice is given and no timely objection is made. A written objection under MCR 6.202(C)(2) removes that shortcut. MCR 6.202(D) also requires a certification by the analyst who conducts the analysis on the forensic sample and signs the report. The rule assumes that the person who analyzes the sample and the person who signs the report are the same. In this case, the records indicated they were not.
The prosecution may also point to MCL 257.625a(6)(a), which makes blood alcohol content shown by chemical analysis admissible. The defense position was that the statute does not displace the Confrontation Clause, the Michigan Rules of Evidence, or MCR 6.202.
MRE 702, MRE 703, and the Missing Data
Apart from the Confrontation Clause, the Michigan Rules of Evidence impose their own requirements. MRE 703 provides that the facts or data underlying an expert's opinion "must be in evidence—or, in the court's discretion, be admitted in evidence later." The Michigan Supreme Court has explained that the rule permits an expert's opinion "only if that opinion is based exclusively on evidence that has been introduced into evidence in some way other than through the expert's hearsay testimony." People v Fackelman, 489 Mich 515 (2011). The data that must be admitted are the "facts or data that are particular to that case." People v Yost, 278 Mich App 341 (2008). Chromatograms, sequence records, calibrator and control results, and sample preparation records are about as case-specific as data can be.
MRE 702 places the burden on the proponent to show, among other things, that the testimony "is based on sufficient facts or data" and that the opinion "reflects a reliable application of the principles and methods to the facts of the case." A court acting as gatekeeper cannot readily make that finding from a one-page result. In People v Carroll, unpublished per curiam opinion of the Court of Appeals, issued September 5, 2024 (Docket No. 369099), the Court of Appeals remanded a Michigan State Police blood alcohol case, noting that "there is no suggestion that accreditation alone suffices to satisfy the requirements of MRE 702." Carroll is unpublished and not binding, but its reasoning addresses the frequent suggestion that laboratory accreditation substitutes for case-specific data.
Prosecutors may cite other authority in response. In People v Bain, unpublished per curiam opinion of the Court of Appeals, issued October 6, 2025 (Docket No. 366860), the Court of Appeals affirmed an OWI conviction despite the prosecution's failure to produce the data underlying a Michigan State Police blood report. Bain is also unpublished, and it was decided after conviction under the materiality standard of Brady v Maryland, 373 US 83 (1963), rather than on a pretrial motion under the court rules and the Confrontation Clause. These distinctions matter, and they illustrate why the procedural posture of an issue can shape its outcome.
Discovery Violations and Late-Added Witnesses
In a misdemeanor case, MCR 6.201(A) applies when the defendant requests discovery under that subrule. MCR 6.610(E). Upon request, a party must provide an expert's curriculum vitae and either a report or a written description of the substance of the expert's testimony, opinion, and "the underlying basis of that opinion." MCR 6.201(A)(3). MCR 6.201(A)(1) permits a witness list to be amended without leave of court no later than 28 days before trial. When a party fails to comply, MCR 6.201(K) gives the court discretion to order production, grant a continuance, prohibit the party from introducing the undisclosed material, or enter another just order.
Exclusion is not automatic. The Court of Appeals has cautioned that "the exclusion of a witness is an extreme sanction that should not be employed if the trial court can fashion a different remedy that will limit the prejudice to the party injured by the violation while still permitting the witness to testify." People v Rose, 289 Mich App 499 (2010). The defense argument in this case was that the usual alternative, a continuance, was not realistic with a jury already sworn, and that the defendant should not be forced to choose between proceeding against undisclosed evidence and giving up the jury he had selected.
The late addition of the testing analyst also implicated MCL 767.40a, which requires the prosecution's witness list at least 30 days before trial and permits later additions only upon leave of court for good cause or by stipulation. The Court of Appeals has held that a witness may not be "'endorsed in the alternative' as an 'and/or' witness," People v Everett, 318 Mich App 511 (2017), which bears on whether a catchall reference to "any and all representatives" of the State Police forensic division adequately identifies a witness. In fairness, the statute appears in the chapter governing indictments and informations, and I did not locate authority deciding whether its witness-list provisions apply to a misdemeanor in district court. MCR 6.201 applies independently.
What This Means for Michigan Blood Cases
Not every blood case presents a surrogate-analyst problem, and not every reviewer is a surrogate. The analysis depends on what the laboratory records show about who did what, what the defense requested and when, what the prosecution disclosed, whether a timely objection was made under MCR 6.202(C)(2), and what the testifying witness actually observed. Some of these questions remain unsettled after Smith, particularly the record-by-record question of which laboratory documents are testimonial.
What this case reinforced for me is the importance of reading the laboratory report carefully, demanding the complete litigation packet early, comparing the chain of custody report against the reported result, and preserving the objection in writing. Small details, such as a name missing from a handling record or a second tube removed "For Exam" when the report says it was not analyzed, can change the legal analysis. Those details only surface when the police reports, laboratory records, chain of custody documents, witness lists, and discovery responses are examined together in light of the governing law.
