Note: This article contains AI-assisted content and has been reviewed by our editorial team.
A DUI defendant walks into a suppression hearing in 2026. The State has a blood-alcohol concentration of 0.14, well above the per se limit. The lab certificate is in the file. The technical reviewer who signed off on the report is in the hallway, ready to testify. But the bench analyst who actually ran the gas chromatograph, calibrated the instrument, and recorded the raw peaks has retired, moved out of state, or simply cannot be located. Two years ago, that was usually fine for the prosecution. Today, it often is not.
The reason is Smith v. Arizona, 602 U.S. 779 (2024), a 6-3 decision authored by Justice Elena Kagan that quietly rewrote how forensic evidence reaches a criminal jury. Although the case itself involved drug analysis, defense attorneys across the country have spent the past two years using its reasoning to suppress blood-alcohol results, breath certificates, and toxicology screens. For DUI practice, it is the most consequential Confrontation Clause decision since Bullcoming v. New Mexico in 2011.
What Smith v. Arizona Actually Held
Jason Smith was charged in Arizona with drug possession after a police search turned up suspected narcotics. Elizabeth Rast, an analyst at the Arizona Department of Public Safety crime lab, tested the substances and prepared a report. By the time of trial, Rast had left the lab. The State called a substitute analyst, Greggory Longoni, who had not performed the testing himself. Longoni offered an opinion that the substances were controlled drugs, basing his opinion on Rast's notes and report.
The Supreme Court held that this practice violated the Sixth Amendment's Confrontation Clause. Writing for the Court, Justice Kagan distilled the rule in a single sentence: If an expert conveys an out-of-court statement in support of his opinion, and the statement supports that opinion only if true, then the statement has been offered for the truth of what it asserts. When that statement is testimonial, the analyst who made it must appear at trial. (Slip op. at 14; read the opinion.)
That sentence did two things. First, it confirmed that the surrogate-analyst workaround many state labs had built after Williams v. Illinois (2012) is no longer viable. Second, it left one question for the lower courts: whether the absent analyst's bench notes were testimonial in the first place. The Court remanded that issue to Arizona under the primary purpose framework from Crawford v. Washington and Ohio v. Clark, 576 U.S. 237 (2015).
Why DUI Laboratories Are Uniquely Exposed
Modern blood-alcohol testing in most state crime labs runs on headspace gas chromatography. The process produces two layers of documentation: the bench analyst's contemporaneous run sheets, calibration logs, and signed certificate, and a technical reviewer's sign-off confirming the run met quality-control standards. Before Smith, many prosecutors put on only the reviewer and relied on the reviewer's testimony to introduce the bench analyst's numbers.
That shortcut is what Smith forecloses. If the reviewer conveys the bench analyst's measurements to the jury and those measurements support the BAC opinion only if true, the reviewer is communicating the bench analyst's statements for their truth. The bench analyst must testify, or the State must find another path to admissibility.
The exposure is not theoretical. State crime labs have absorbed years of turnover, retirements, and backlogs. A bench analyst who ran a sample in 2023 may no longer be reachable in 2026. Smith turns each of those staffing gaps into a potential suppression motion.
The Confrontation Clause Arc: Crawford to Smith
To understand why Smith hit so hard, it helps to trace the line of cases:
-
Crawford v. Washington, 541 U.S. 36 (2004): Established that testimonial out-of-court statements are inadmissible against a criminal defendant unless the declarant is unavailable and the defendant had a prior chance to cross-examine.
-
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009): Held that sworn forensic certificates are testimonial. Defendants are entitled to confront the analyst.
-
Bullcoming v. New Mexico, 564 U.S. 647 (2011): Directly on point for DUI. The Court held that a surrogate analyst could not testify about a BAC certificate prepared by another analyst.
-
Williams v. Illinois, 567 U.S. 50 (2012): A fractured plurality suggested that an expert could reference an absent analyst's findings as the basis of an opinion without offering those findings for their truth. Many prosecutors treated Williams as a green light.
-
Smith v. Arizona, 602 U.S. 779 (2024): Rejected the Williams plurality's not for the truth theory and reconnected the doctrine with Melendez-Diaz and Bullcoming.
For more than a decade, the Williams plurality gave state forensic labs cover to use a single substitute witness for trial after trial. Smith ends that practice.
What Smith Did Not Decide
Defense attorneys should be precise about what Smith did and did not resolve. The Court did not hold that every bench note is testimonial. It remanded the testimonial question for the Arizona courts to decide using the primary-purpose test. Whether a particular run sheet, calibration log, or chain-of-custody form qualifies as testimonial depends on why it was created and how the lab uses it. Business-records arguments and intra-lab quality-control records remain live issues in the lower courts.
The Court also did not disturb notice-and-demand statutes. As footnote 4 of Melendez-Diaz made clear, states may require defendants to give pretrial notice that they intend to challenge a certificate. Smith does not eliminate those procedures. It does, however, raise the stakes once a defendant makes the demand: the State must produce the analyst whose statements actually support the result.
Finally, Smith does not bar all surrogate testimony. A qualified expert may still offer an independent opinion based on data the expert personally observed or relied on, provided the expert does not act as a conduit for an absent analyst's assertions. The line is narrower than what many labs had been doing, but it is not zero.
The Defense Playbook in 2025-2026
For attorneys handling DUI blood and breath cases, the practical implications are concrete:
-
File a notice-and-demand challenge early. Force the State to identify which analysts it intends to call and which it does not.
-
Move in limine to exclude reviewer-only testimony. Frame the motion around Smith's holding that conveying an absent analyst's statements as the basis of an opinion is offering them for their truth.
-
Demand the bench analyst. If the State cannot produce the person who actually ran the instrument, argue the BAC result is inadmissible.
-
Attack reviewer foundations. If a reviewer takes the stand, develop on voir dire whether the reviewer personally observed any part of the testing or is simply repeating the bench analyst's measurements.
-
Preserve the testimonial question. Because Smith remanded on that issue, lower courts are actively shaping what counts as testimonial. Build a record for appeal.
How Prosecutors Are Adapting
The prosecution side is not standing still. District attorneys and state crime labs are responding in several ways: subpoenaing every analyst in the testing chain, cross-training analysts so more than one person can speak to a given run, recording bench notes in more detail to support independent-opinion testimony, and pushing for legislative fixes to notice-and-demand procedures. Justice Samuel Alito's concurrence warned that the majority's rule would disrupt forensic testimony nationwide, and that prediction is playing out in lab budgets and trial calendars.
Open Appellate Questions
Several issues remain unsettled and will shape DUI practice in the next two years:
-
Harmless error. How forgiving will appellate courts be when a Smith violation occurs but other evidence of impairment is strong?
-
Retroactivity. Smith plainly applies to cases on direct review. Whether it applies on collateral review is a separate question governed by the Teague v. Lane framework.
-
Breath versus blood. Breath devices such as the Intoxilyzer and Datamaster produce results without a bench chemist, but they still generate calibration and maintenance records signed by technicians. Whether those records are testimonial under Smith is being litigated.
-
Bench notes as business records. Some courts are receptive to the argument that contemporaneous run sheets are non-testimonial lab business records. Others are not.
Practitioner Takeaways
If you are facing a DUI charge that depends on a blood draw or breath certificate, the identity of the analyst matters more than it did three years ago. Ask your attorney who tested your sample, whether that person is still employed at the lab, and whether the State intends to call that person at trial. If the answer is the reviewer rather than the bench analyst, Smith may be your strongest pretrial issue.
If you are a prosecutor, the cost of losing the analyst is now the cost of losing the case. Lab staffing and witness coordination are no longer back-office concerns. They are case-dispositive.
If you are a judge, expect more suppression motions, more cross-examination on the mechanics of gas chromatography, and more arguments about what makes a record testimonial under Ohio v. Clark.
The Forward Look
Post-Smith case law is still developing. State supreme courts are working through the testimonial question on remand-style fact patterns. Cert petitions raising harmless-error and breath-test issues are circulating. Practitioners should track their own state's appellate dockets and verify current authority before relying on any specific holding in a motion.
What is not in doubt is the direction of travel. Smith restored the bite that Melendez-Diaz and Bullcoming were supposed to have. For DUI defendants in 2026, that means a real shot at suppression in cases where the State cannot, or will not, put the right analyst on the stand.
Related reading
Sources
IMPORTANT NOTICE: GavelDaily.com is an advertising and information service, not a law firm. Submitting this form does not create an attorney-client relationship. The information you provide will be shared with licensed criminal defense attorneys in your area who may contact you about your inquiry. All submissions are treated as confidential by our service, but attorney-client privilege does not attach until you formally retain an attorney. Any attorney you connect with through this service is independently responsible for their legal advice and representation. Free consultations are subject to individual attorney availability. If you are facing an immediate legal emergency, contact your local public defender's office or call 911.