In what was bound to happen once the now infamous Melendez Diaz case was decided, the SJC on 2/7/11 heard arguments from defense attorneys that OUI breath certs should be treated similiarly.
In Comm v. Zeininger The issue presented, among others, is whether testimony by the chemist who certified the breath-testing device is required at the trial of a complaint for operating a motor vehicle while under the influence of alcohol.
Last month, the Alcotest 7110 was ruled as valid by a Lawrence district court judge. In the current appeal to the SJC the defense argues,
ARGUMENTI tI. Zeininger’s Sixth Amendment right to confront the witnesses against her was violated, and her convictionmust be reversed, because in lieu of live testimony froman OAT chemist, the trial court admitted out-of-courtcertifications attestina that the Greenfield Police Department’s breath-testing device was “certified,” which by statute the Cornonwealth is required to prove before breath-test results can be admitted in a criminal trial.
A. The Commonwealth is required to prove that thebreath-test was administered on a “certified” breath testing device before the test results can be admitted into evidence.
B. Use of out-of-court certifications to prove that the Greenfield breath-testing device was “certified”violated Zeininger’s Sixth Amendment right to confront the witnesses against her.
It will be very interesting to see how the SJC interprets this, especially considering the recent Supreme Court ruling that muddies the waters regarding the Crawford decision. However, as the Commonwealth argued in their brief,
In Melendez-Diaz, the court held that , pursuant t0 the Sixth Amendment, as interpreted under Crawford v. Washington, 541 U.S. 36 (2004), defendants had a right to confront analysts who had tested material and determined it to he cocaine of a certain quantity . I d .a t 2532. Accordingly, “certificates” of analysis, which amounted to sworn affidavits that the substance tested was cocaine, were noC independently admissible. Id.The c o u r t took p a i n s t o make i C clear t h a t it did not hold that “anyone whose testimony may be relevant in establishing . . . accuracy of the testing device, must appear in person as part of the prosecution’s case.”Td. at n , 1. The court further noted that “documents prepared in the regular course of equipment maintenance may well qualify as non testimonial records. ” .I’d.
Now considering that in Melendez Diaz the issue was the confrontation clause and it was ruled that the chemist should be available for testimony, shouldn’t the operator who handled the BT machine satisfy their burden? As I said earlier, this may all be moot considering the recent Supreme court case regarding Crawford (which started this ball rolling in ’04) which I will post on in coming weeks.
Attorney Ronald A. Sellon