Navigating The Confrontation Clause In Georgia DUI Cases: Key Insights From Smith V. Arizona And The Pending Johns V. Georgia Petition

As an experienced Alpharetta DUI lawyer, I’ve defended countless clients facing DUI charges in Georgia, where blood alcohol content (BAC) evidence often plays a pivotal role. In these cases, the prosecution frequently relies on forensic evidence from blood draws and toxicological analyses. But what happens when the actual blood drawer or the toxicologist who performed the analysis isn’t available to testify? Can the state use a “substitute” witness to introduce their findings? This question ties directly to the Sixth Amendment’s Confrontation Clause, which guarantees your right to confront the witnesses against you.

Recent developments in U.S. Supreme Court jurisprudence, including the landmark Smith v. Arizona decision and the pending petition in Johns v. Georgia, are reshaping how we challenge such evidence. In this blog post, I’ll break down these cases and explain their implications for DUI defense in Georgia. If you’re facing a DUI charge involving blood evidence, understanding these rulings could be crucial to your case.

What Is the Confrontation Clause, And Why Does It Matter In DUI Cases?

The Sixth Amendment to the U.S. Constitution states: “In all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him.” This means you have the right to cross-examine anyone whose statements are used against you at trial. In DUI cases, this often applies to “testimonial” statements—formal declarations made for evidentiary purposes, like lab reports or notes from blood alcohol testing.

In Georgia DUI prosecutions, blood samples are typically drawn by a medical professional (e.g., a phlebotomist or nurse) and analyzed by a toxicologist at a lab, such as the Georgia Bureau of Investigation (GBI). Their reports detail the BAC level, which can lead to charges under O.C.G.A. § 40-6-391 if it’s 0.08% or higher. However, if the original analyst or blood drawer is unavailable (due to retirement, relocation, or other reasons), the state might try to use a substitute witness—like a supervisor or peer reviewer—to testify about the results. This raises red flags under the Confrontation Clause, as it could allow hearsay (out-of-court statements) to be introduced without cross-examination.

The U.S. Supreme Court has long scrutinized this practice in forensic evidence cases, starting with Crawford v. Washington (2004), which revived the Clause’s protections against testimonial hearsay. Two recent cases highlight the ongoing battle.

Smith v. Arizona: A Game-Changer For Substitute Experts In Forensic Testimony

In Smith v. Arizona (602 U.S. ____, 2024), the Supreme Court addressed a scenario eerily similar to many DUI blood tests. Arizona police seized suspected drugs from defendant Jason Smith, and lab analyst Elizabeth Rast tested them, preparing notes and a report identifying methamphetamine, marijuana, and cannabis. Rast left the lab before trial, so the state called substitute analyst Greggory Longoni. Longoni didn’t perform the tests but reviewed Rast’s work and testified to her findings as the “basis” for his own “independent opinion.”

The Court, in an opinion by Justice Kagan, held that when a substitute expert conveys an absent analyst’s statements to support their opinion—and those statements are used for their truth—it violates the Confrontation Clause if the statements are testimonial. Key takeaways:

• Truth Matters: The Court rejected the idea that such statements are admissible merely to explain the “basis” of the expert’s opinion under evidentiary rules (like Arizona’s equivalent of Federal Rule of Evidence 703). If the statements are essential to proving the facts (e.g., what tests were done and their results), they’re being used for their truth, triggering confrontation rights.
• Forensic Evidence is Not Immune: Building on prior cases like Melendez-Diaz v. Massachusetts (2009) and Bullcoming v. New Mexico (2011), the Court emphasized that lab reports in criminal cases are often “testimonial” because they’re created for prosecution purposes.
• Remand on “Testimonial” Issue: The Court vacated and remanded for the Arizona courts to determine if Rast’s statements were testimonial, but the core holding clarifies that substitutes can’t simply parrot absent analysts’ work without confrontation.

For Georgia DUI clients, this is huge. If a toxicologist’s report shows a high BAC but the analyst isn’t testifying, a substitute (e.g., a GBI supervisor) reciting those results could be challenged. As your Alpharetta DUI attorney, I’ve successfully used similar arguments to suppress evidence or secure acquittals by highlighting the lack of opportunity to cross-examine on potential errors in collection, chain of custody, or testing procedures.

The Pending Johns v. Georgia Petition: Autopsies, Surrogates, and Parallels to DUI Blood Evidence

Hot on the heels of Smith, the Georgia Supreme Court’s decision in Johns v. State (No. S25A0875, decided August 12, 2025) is now before the U.S. Supreme Court on a petition for certiorari (filed December 10, 2025). This case involves a homicide where the forensic pathologist who performed the autopsy was unavailable. Instead, the state used a “peer review” pathologist who didn’t participate but testified based on the unadmitted autopsy report.

The Georgia Supreme Court upheld the conviction, allowing the surrogate’s testimony. But petitioner George Sharrod Johns argues this violates the Confrontation Clause, as the surrogate essentially recited testimonial hearsay from the report without cross-examination of the original pathologist.

• Question Presented: Does a surrogate’s oral recitation of testimonial hearsay from an unadmitted autopsy report violate the Clause? This builds on Smith, questioning whether surrogates can bypass confrontation by framing their testimony as an “independent review.”
• Why It Matters for DUI: While Johns involves an autopsy, the logic applies directly to blood draws and toxicology in DUI cases. Blood drawers document the procedure (e.g., site of draw, antiseptics used), and toxicologists create reports on BAC analysis. These are testimonial under Crawford. If a substitute testifies to those details without the original witness, it’s akin to the surrogates in Smith and Johns—potentially unconstitutional.

Georgia courts have sometimes allowed this under state evidence rules (e.g., O.C.G.A. § 24-7-703 for expert bases), but Smith makes clear that evidentiary rules don’t trump constitutional rights. If SCOTUS grants cert in Johns, it could provide even clearer guidance, possibly barring surrogates in forensic contexts altogether.

How This Affects Your DUI Defense in Alpharetta and Beyond

In my practice as an Alpharetta DUI lawyer, I’ve seen prosecutors rely heavily on blood evidence, especially in implied consent cases where refusal isn’t an option. But flaws in the process—contaminated samples, improper storage, or analyst errors—can be exposed only through cross-examination. Without it, your rights are compromised.

If you’re charged with DUI in Fulton, Gwinnett, or surrounding counties:

• Challenge Substitute Witnesses: Cite Smith to argue that any recitation of an absent toxicologist’s or blood drawer’s statements is for their truth and requires confrontation.
• Suppress Evidence: File motions to exclude BAC results if the state can’t produce the original witnesses, potentially leading to reduced charges or dismissal.
• Stay Updated: With Johns pending at SCOTUS, the law could evolve quickly. A grant of cert could strengthen defenses against surrogate testimony.

At George Creal, Attorney at Law, we specialize in aggressive DUI defense, leveraging the latest constitutional developments to protect your rights. If you’ve been arrested for DUI involving blood tests, don’t wait—contact us today for a free consultation. We’ve helped hundreds of clients beat DUI charges in Georgia, and we’re here to fight for you.

Disclaimer: This post is for informational purposes only and not legal advice. Outcomes vary by case.

#AlpharettaDUILawyer #GeorgiaDUI #ConfrontationClause #SmithvArizona #JohnsvGeorgia