As a Massachusetts OUI attorney, challenges to breath test and blood test evidence based on the 6th Amendment Confrontation must be made in each case as the law continues to evolve in this area. Cases from the United States Supreme Court continue to define the scope of the right of confrontation.

Recently, the New York Appeals Court ruled on the issue of an alleged violation of the “Confrontation Clause” when records for a Breathalyzer test were presented at trial without the verbal testimony of the technicians whom completed the tests.

In State v. Pealer, a police officer stopped the defendant for suspicion of drunk driving. When the defendant failed all sobriety tests, he was arrested. At the station, he failed a Breathalyzer test.

At trial, prosecutors introduced the inspection, maintenance, and calibration records of the Breathalyzer machine to the court to establish the device was working properly at the time of arrest. However, Defendant argued that presentation of this evidence without additional testimony from the technicians who prepared the analysis was a direct violation of the Confrontation Clause. Specifically, it violated the Confrontation Clause because it did not provide Defendant with the opportunity to cross-examine.

Under the Confrontation Clause of the Sixth Amendment to the United States Constitution, in criminal prosecutions, the accused have the right to confront witnesses against them. This right is typically demonstrated at trial with the use of cross-examination pertaining to testimonial evidence.

However, the key in determining violation of the Confrontation Clause is to define what type of evidence is deemed testimonial or non-testimonial. For example, in Crawford v Washington (541 U.S. 36) testimonial evidence was found to violate the Confrontation Clause. The defendant was charged with assault and attempted murder. The State sought to introduce a recorded statement of the defendant’s wife made during the police investigation as evidence that the defendant was not exercising self-defense during the alleged stabbing. However, due to Washington’s Marital Privileged rights, defendant’s wife would not testify at trial. Therefore, because she was not available for cross-examination in regards to her recorded statements, it was held to be a direct violation of the Confrontation Clause.

However, in the present case, New York courts ruled differently. The Breathalyzer documents demonstrating the records of inspection, maintenance and calibration were not testimonial. Instead, they are merely records demonstrating the machine is working properly vs the witness testimony of defendant’s wife in Crawford. Therefore, it was ruled that the records did not violate the Confrontation Clause. The decision of courts to admit breath test evidence without live testimony should be viewed as a violation of the confrontation clause.

Issues of violation of constitutional rights often come up in OUI cases. If you have any further questions, you can find additional information on constitutional violations and Breathalyzer tests in many of my past blogs including:

Salinas v. Texas will decide whether pre-arrest silence invokes the Fifth Amendment and should be excluded from evidence

United States Supreme Court to address whether a warrant is required to obtain a blood sample from DUI suspect