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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

ADVERTISEMENT