Accuracy and calibration certificates for breath-test machines are admissible without live testimony from the person who prepared them, the state Supreme Court has ruled, concluding the documents' admission does not violate a defendant's right to be confronted by his or her accuser.
The court in a unanimous decision affirmed the state Superior Court's ruling in a DUI case that breath-test machine certificates are "not testimonial," finding that the defendant's right to confrontation via the Sixth Amendment was not infringed.
According to Justice J. Michael Eakin, who wrote for the high court in Commonwealth v. Dyarman, while the certificates were relevant evidence, they were not constructed for the purpose of accusing the defendant.
"We conclude the calibration and accuracy certificates were nontestimonial in nature because they were not prepared for the primary purpose of providing evidence in a criminal case, and their admission into evidence did not violate appellant's confrontation clause rights," Eakin said in the court's opinion.
Justice Thomas G. Saylor joined the majority and offered a concurring statement in which he noted that while he agreed with the court's ruling, "it is fair to point out that calibration and accuracy testing of the machines should be viewed as being derivative of" using them in providing evidence in criminal cases.
According to the opinion, defendant Mary A. Dyarman was stopped November 28, 2009, in her vehicle by police in Cumberland County, who determined that she was driving under the influence of alcohol.
After her arrest and transportation to a DUI booking station, Dyarman was given a breath test by corrections officer Rodney Gsell to determine her blood alcohol content, Eakin said.
Dyarman's BAC registered at .117 percent and she was formally charged with two counts of DUI, according to Eakin.
At a bench trial, the state presented the testimony of Gsell and moved to admit the calibration and accuracy certificates for the device used to test Dyarman's BAC; however, Dyarman objected, claiming that since Gsell was not the individual who performed the calibration and accuracy tests, her Sixth Amendment rights were being violated, Eakin said.
The objection was denied and Dyarman appealed to the Superior Court, which held that the certificates were "not testimonial" and "were admitted into evidence to establish the chain of custody and accuracy of the device used to test [Dyarman]," Eakin said.
In arriving at its decision, the Superior Court examined the U.S. Supreme Court's ruling in Melendez-Diaz v. Massachusetts, according to Eakin.
The court in Melendez-Diaz said, "We do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody … or accuracy of the testing device, must appear in person as part of the prosecution's case," according to Eakin.
The court also said it is up to the prosecution to determine what steps in the chain of custody merit evidence and testimony, but it did find that "what testimony is introduced must (if the defendant objects) be introduced live," according to Eakin.
Dyarman argued that the Superior Court's decision went against Melendez-Diaz in that the state had not met its obligation to introduce live testimony, Eakin said.
In a footnote, Eakin said Dyarman was mistaken in thinking documents pertaining to equipment maintenance needed to be accompanied by in-court testimony.
"The need for live, in-court testimony applies to testimonial statements," Eakin said. "By stating such records may be nontestimonial in nature, the [U.S.] Supreme Court acknowledged that they may not be of a constitutional dimension, since the confrontation clause [of the Sixth Amendment] applies only to testimonial statements."
The U.S. Supreme Court also noted that the certificates were "functionally identical to live, in-court testimony," according to Eakin.
Eakin added that the certificates were prepared weeks before Dyarman was arrested and did not provide any information regarding her BAC, nor did they refer to her in any way.
In addition, the calibration and accuracy certificates were "not prepared for the primary purpose of providing evidence in a criminal case, let alone the primary purpose of accusing [Dyarman]," Eakin said.
Eakin also noted that in Williams v. Illinois, a plurality of the U.S. Supreme Court similarly found that a DNA report was not "testimonial" for purposes of the confrontation clause because the report was not prepared for the primary purpose of accusing a targeted individual.
Eakin clarified that the certificates should also not be construed as business records, which would make them an exception to the hearsay rule.
"In Melendez-Diaz, the U.S. Supreme Court noted that business and public records are generally admissible absent confrontation not because they qualify under the hearsay rules but because — having been created for the administration of an entity's affairs and not for the purpose of proving some fact at trial — they are not testimonial," Eakin said.
Cumberland County District Attorney David Freed said his office was pleased with the ruling, as well as the speed with which it was given.
"To get a ruling in a relatively quick fashion on an issue at first blush doesn't seem to be that important, but is, because it's a crossroad of Melendez-Diaz and what constitutes testimonial evidence," Freed said. "It's important in that it eliminates a little bit of the burden in presenting a case like this."
Dyarman's attorney, Karl Rominger of Rominger & Associates in Carlisle, Pa., could not be reached for comment.
(Copies of the 14-page opinion in Commonwealth v. Dyarman, PICS No. 13-2464, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •