ILNews

COA: Breathalyzer certificate is not testimonial

Back to TopCommentsE-mailPrintBookmark and Share

For the first time since the Supreme Court of the United States’ 2009 ruling that found a defendant had a Sixth Amendment right to confront the analysts who prepared lab certificates certifying the defendant had cocaine, the Indiana Court of Appeals ruled that a trial court did not violate the defendant’s right to confrontation by allowing the inspection certificate for a breathalyzer into evidence, even though the certifier of the equipment did not testify at trial.

In Francisco J. Ramirez v. State of Indiana, No. 65A01-0911-CR-543, finding the inspection certificate was not testimonial evidence within the purview of Crawford v. Washington, 541 U.S. 36 (2004), and Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), the Court of Appeals affirmed Francisco J. Ramirez’s conviction of Class A misdemeanor operating a vehicle while intoxicated.

On Oct. 18, 2008, Ramirez was arrested for drunk driving and failed a field sobriety test after he was pulled over by a Mount Vernon Police Department officer. The officer had observed Ramirez was swerving and used his radar to find Ramirez was driving 8 mph over the posted speed limit.

After he was pulled over, Ramirez failed three field sobriety tests. He then agreed to a breath test on a BAC DataMaster, which printed a ticket that showed his blood alcohol content was .09.

At trial, the state introduced Ramirez’ breath test results and an official certificate of compliance that verified the officer’s DataMaster had been examined Aug. 12, 2008, and had been found to satisfy the requirements of Department of Toxicology Regulations. The director at the Department of Toxicology had signed the certificate.

Ramirez argued because the certificate showed the DataMaster’s results would be accurate, not being able to cross-examine the certifier disqualified the DataMaster printout as evidence.

Following Crawford, and prior to Melendez-Diaz, the Court of Appeals continued to find that certificates of compliance for breathalyzers were not testimonial, according to today’s opinion for Ramirez.

“We reasoned in part that (1) the certificates are not prepared at a judicial proceeding or during police interrogation, Rembusch, 836 N.E.2d at 982, (2) the certificates are not sworn affidavits and do not contain formalized testimonial materials, id., and (3) although inspection certificates are prepared for purposes of criminal litigation, ‘certification of breath-test machines is removed from the direct investigation or direct proof of whether any particular defendant has operated a vehicle while intoxicated; the certificates are not prepared in anticipation of litigation in any particular case or with respect to implicating any specific defendant.’ Jarrell, 852 N.E.2d at 1026 (citations omitted),” Judge Nancy Vaidik wrote.

Following the decision of Melendez-Diaz, Judge Vaidik continued, the Court of Appeals still finds that the certificate for a breathalyzer is still not testimonial in nature. She cited the Supreme Court’s decision, which addressed certificates for lab equipment.

In her dissent, Senior Judge Betty Barteau agreed in result, but disagreed “with the majority’s conclusion that the State’s Certificate of Inspection and Compliance of Breath Test Instruments … is nontestimonial in nature. I therefore conclude that admission of that document violated Ramirez’s Sixth Amendment right to confront witnesses against him.”

Judge Barteau then compared the case to the 2009 Indiana Supreme Court decision Pendergrass v. State, 913 N.E.2d 703 (Ind. 2009), in which the Indiana Supreme Court determined a certificate of analysis from a DNA lab technician was testimonial in nature, citing Melendez-Diaz.

Judge Barteau also wrote in the Ramirez case the error was harmless because there was enough other evidence for a jury to convict Ramirez of operating a vehicle while intoxicated in a manner endangering a person, a Class A misdemeanor, based on the observations of the officer, who did testify at trial.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

ADVERTISEMENT