In State v. Syx, 2010-Ohio-5880, Judge Fain wrote for a unanimous 2nd District Court of Appeals holding that:
The Sixth Amendment Confrontation Clause provides that, “[I]n all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him.” The United States Supreme Court has held that the right to confrontation is violated when an out-of-court statement, which is testimonial in nature, is admitted into evidence without the defendant having had the opportunity to cross-examine the declarant. Crawford v. Washinton (2004), 541 U.S. 36, 68, 124 S.Ct 1354, 158 L.Ed.2d 177.
In this case, the defendant argued that he was denied his right of confrontation when the State, failed to call the phlebotomist who drew his blood. The prosecution argued that this right was not violated because the phlebotomist had testified at the motion to suppress hearing. The Court of Appeals rejected this argument. The government then tried to argue that if he wanted to confront the witness, then the defendant should have subpoenaed the witness himself. The Court rejected this approach, holding, “[T]he Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses to court.” Continuing on, “Without the testimony of witnesses with first-hand knowledge, the test results should not have been admitted into evidence.”
The Court also reiterated its prior rulings that allow a DUI defendant to challenge the chemical test at trial even when a full motion to suppress was held. “This does not mean, however, that the defendant may not challenge the chemical test results at trial under the Rules of Evidence. Evidentiary objections challenging the competency, admissibility, relevancy, authenticity, and credibility of the chemical test result may still be raised.” State v. French (1995), 72 Ohio St.3d 446. The defendant is only prevented in challenging that the test results were not obtained in compliance with the established administrative guidelines.