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COA: Breathalyzer certificate is not testimonial

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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.
 

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  1. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  2. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

  3. They say it was a court error, however they fail to mention A.R. was on the run from the law and was hiding. Thus why she didn't receive anything from her public defender. Step mom is filing again for adoption of the two boys she has raised. A.R. is a criminal with a serious heroin addiction. She filed this appeal MORE than 30 days after the final decision was made from prison. Report all the facts not just some.

  4. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  5. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

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