What’s Blakely got to do with it? Sentencing in Impaired Driving Cases after Melendez-Diaz

Jeff Welty blogged here and Jessica Smith published a paper here about the implications of the Supreme Court's holding in Melendez-Diaz that forensic laboratory reports are testimonial, rendering the affiants witnesses who are subject to the defendant's right of confrontation under the Sixth Amendment. I've been pondering the impact of the court's holding on the admission of evidence for purposes of sentencing in impaired driving cases. Suppose a defendant pleads guilty to impaired driving in district court.  The judge then holds a sentencing hearing as required by GS 20-179. The state attempts to introduce the chemical analysis (a breath test showing an alcohol concentration of .15 or more) as an aggravating factor. The chemical analyst is not present at the hearing. Assuming that Melendez-Diaz would prohibit the introduction of the objected-to affidavit at a trial in district court, does the same rule apply to sentencing in the impaired driving case? The first question is whether aggravating factors in an impaired driving case are the functional equivalent of elements of the underlying crime. As a reminder (for those who may have been lost on a deserted island for the past decade) the Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466 (2000), that any fact, other than a prior conviction, that increases the penalty for a crime beyond the statutory maximum has to be submitted to a jury and proved beyond a reasonable doubt. In Blakely v. Washington, 542 U.S. 296 (2004), the court explained that that the relevant statutory maximum is the maximum sentence [...]