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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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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