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
2015 Distinguished Barrister &
Up and Coming Lawyer Reception

Tuesday, May 5, 2015 • 4:30 - 7:00 pm
Learn More


ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

ADVERTISEMENT