Lowering the Boom (and the Bar) in New York Drunk Driving Prosecutions

Breath Test Apparatus.jpg

This is the third in a series of entries about the US Constitution’s ‘confrontation clause’. In May we published a very brief overview and history of the provision, which is found in the Sixth Amendment, and in August we got into the nuts and bolts of Crawford v. Washington, a Supreme Court case that set the stage for today’s ‘confrontation clause’ confrontations.

That decision concluded that “where testimonial evidence is at issue” the Sixth Amendment demands, in its simplest terms, an opportunity for cross-examination. Crawford didn’t tell us, though, just what’s included in that term ‘testimonial’, and how ‘non-testimonial’ hearsay might be treated by individual states.

Which brings us once again to People v. Pealer, a recent decision from New York’s highest court, the Court of Appeals.

In our September 5th entry, we addressed a secondary topic noted in Pealer: the fact that driving around with a transparent sticker on your rear window is actually illegal. This time around we’ll take a quick look at the primary issue in the case.

Robert Pealer, the defendant, had been charged with driving while intoxicated. How did the People know he was intoxicated? A breathalyzer test. How did they know the breathalyzer was working properly? A ‘certificate of calibration’, a ‘certificate of maintenance records’, and a certification of the sample of the simulator solution used in the machine – a rubber stamp, essentially.

Not surprisingly, Mr. Pealer didn’t think this was sufficient. He thought he had a right to cross examine the person or persons who prepared those certificates. But he was wrong, according the the Court of Appeals, as we’ll see below.

The court did acknowledge that

the records at issue bear some resemblance to traditional testimonial hearsay because they contain certified declarations of fact attesting that the breathalyzer machine was functioning properly and its readings were accurate and reliable.

This would appear to be an example of judicial understatement: The breathalyzer result goes to the very heart of the question to be decided in a drunk driving prosecution. Section 1192(2) of the Vehicle and Traffic Law (designated per se) states that

No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva. . .

In other words, you’re drunk if the breathalyzer says you’re drunk, unless you can show (1) that the test was not administered properly; (2) that there is something weird about your metabolism that would make it difficult for a properly functioning machine to give an accurate reading (It can happen. See our entry for September 16, 2011); or (3) you can show that the machine was not functioning properly.

And that’s where you hit the brick wall set up by Pealer. The opinion noted that some of the records in question were created by New York’s Division of Criminal Justice Services (DCJS). According to Pealer, DCJS is an “executive agency that is independent of law enforcement agencies, whose task was to ensure the reliability of such machines – not to secure evidence for use in any particular criminal proceeding.”

But is DCJS really an independent agency? Who are DCJS’s clients, and what are their needs?And not all the records were created by DCJS. Some of them (the simulator certificates) were created by the New York State Police Forensic Lab. It would be hard to argue that the State Police are independent of law enforcement agencies.

The bottom line in Pealer:

We endorse the widely-held view and hold that documents pertaining to the routine inspection, maintenance and calibration of breathalyzer machines are nontestimonial under Crawford and its progeny. Consequently, the Confrontation Clause was not implicated in this case and the trial judge did not err in declining the defendant’s request to cross-examine the authors of the testing records before the court ruled on their admissibility.

Next time: we’ll talk further about Pealer, and in particular compare it to a post- Crawford Supreme Court decision, Melendez-Diaz v. Massachusetts