Has anyone litigated whether the tech supervisor who actually prepared the reference solution and placed it in the intoxilyzer instrument must testify at trial rather than a successor tech supervisor? Does the holding in Bullcoming invalidate the Henderson case which held that a successor supervisor can review the maintenance records of a former supervisor and offer an expert opinion on the accuracy of the intoxilyer?

The answer depends on whether the SCOTUS accepts the viewpoint the Sixth Amendment is not violated when an expert testifies to an independent opinion generated by reviewing the facts or data generated by other people. That issue is currently before the SCOTUS in a case out of Illinois.

Details.

I've litigated this in a pretrial motion to suppress seccessfully (with a caveat). Take a look at Henderson v. State, 14 SW3d 409 (Court of Criminal Appeals, 2000) and Settlemire v. State, 323 SW3d 520 (Ft. Worth Court of Appeals 2010, petition ref'd).

Also pay very close attention to what Bulcoming does and does not say. The confrontation clause analysis is only appropriate when the statement is testimonial. A technical supervisors statement is no more testimonial than that of the guy who originally installed a gas chromatagraph in the DPS lab. The records and testing are made in the administration of a DPS program, not in preparation for any particular litigation.

Now, also be careful of this. On the day of trial, after my trooper's testimony had started, the NEW technical supervisor says to me over lunch "Oh, by the way, you should know about this" and hands me the log showing that the machine permanently malfunctioned two days after my particular breath test. His opinion was that the machine was working properly at the time of our defendant's breath test, but he wasn't the one who had taken it out of service, or dealt with the malfunction, or determined it was no longer operable. And that's before you even get into the Brady issues...

So yes, I think the caselaw as it stands in Texas certainly allows you to bring in a subsequent technical supervisor, but know EXACTLY what you're getting into before you do.