On may 24, 2011 the SJC decided COMMONWEALTH vs. ZOANNE ZEININGER 459 Mass. 775 (2011). The case is significant in that it clarifies the admissibility of breath test records with regards to the Melendez Diaz confrontation clause issue. In this case, the certification records were admissible under the business records exception to the hearsay rule. G. L. c. 233, § 78.
The court stated that “At the trial of a criminal complaint charging the defendant with operation of a motor vehicle while under the influence of intoxicating liquor, the judge properly admitted in evidence as business records the annual certification, and accompanying diagnostic records, attesting to the proper functioning of the breathalyzer machine used to test the defendant’s blood alcohol content, where the certification records were made in good faith, in the regular course of business, and at the time of certification, two months before the defendant’s arrest; and where the certification records did not reflect the judgment and discretion or expressions of opinion of the technician making the certification, but rather signified that the diagnostic testing and calibration procedures prescribed by regulation were satisfactorily performed [781-784]; further, the admission of the certification records, in the absence of the technician who tested the machine, did not violate the defendant’s right under the Sixth Amendment to the United States Constitution to confront witnesses against her, where the certification records were not testimonial, in that they bore only on the admissibility or credibility of the evidence of the breathalyzer test results, and in that, at the time they were made, their primary purpose was to guarantee the accuracy and standardization of all breathalyzer testing equipment across the various police departments of the Commonwealth.
At the trial of a criminal complaint charging the defendant with operation of a motor vehicle while under the influence of intoxicating liquor, the judge did not abuse her discretion in permitting a police officer to testify regarding the proper functioning of the breathalyzer machine used to test the defendant’s blood alcohol content and the machine’s ability to differentiate between so-called “mouth alcohol” and alcohol from the consumption of liquor, where, with regard to the functioning of the machine, the officer merely affirmed his prior testimony that his periodic calibration testing produced satisfactory results, and where, with regard to the differentiation between types of alcohol, the officer possessed specialized knowledge and his testimony assisted the jury in a matter beyond their common experience.
There was no merit to the claim that, at the trial of a criminal complaint charging the defendant with operation of a motor vehicle while under the influence of intoxicating liquor, the evidence was insufficient to demonstrate that a police officer observed the defendant for fifteen minutes prior to conducting a test of her blood alcohol content.
3. Discussion. Zeininger’s principal argument on appeal is that the judge committed an error of constitutional dimension when she admitted in evidence the OAT certification records. Zeininger argues that (1) the OAT certification records amounted to out-of-court statements that did not fall within any cognizable exception to the hearsay rule, and (2) were testimonial evidence, introduced by the Commonwealth without an opportunity to cross-examine the OAT technician who tested the breathalyzer machine, in violation of the confrontation clause of the Sixth Amendment. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009) (Melendez-Diaz); Crawford v. Washington, 541 U.S. 36, 51-52 (2004) (Crawford).
We have held that the admissibility of an out-of-court statement in a criminal trial is to be determined by a two-part inquiry: “a statement must first be evaluated for admissibility under normal evidence rules, i.e., whether it qualifies as a hearsay exception.” Commonwealth v. Nardi, 452 Mass. 379 , 391 (2008) (Nardi), quoting Commonwealth v. Burgess, 450 Mass. 422 , 431 n.6 (2008). “Then, the [challenged] statement must be appraised under the criteria of Crawford . . . to determine if it satisfies the confrontation clause of the Sixth Amendment.” Nardi, supra at 391-392, quoting Commonwealth v. Burgess, supra. We address each requirement in turn.
a. Hearsay exception. Generally, out-of-court statements offered to establish the truth of the matter asserted are inadmissible at trial under the rule against hearsay. See Mass. G. Evid., supra at § 802, at 243. Hearsay statements contained in official business records, however, are admissible if (1) the entry, writing, or record was made in good faith; (2) in the regular course of business; (3) before the beginning of the civil or criminal proceeding in which it is offered; and (4) it was the regular course of such business to make such a memorandum at the time of such act, transaction, occurrence, or event or within reasonable time thereafter. G. L. c. 233, § 78. See Commonwealth v. Trapp, 396 Mass. 202 , 208 (1985); Commonwealth v. Sellon, 380 Mass. 220 , 230 & n.15 (1980). “The operations of the instrumentalities of government constitute ‘business’ within the meaning of the statute.” Sawyer & Co. v. Southern Pac. Co., 354 Mass. 481 , 484 (1968), quoting LaPorte v. United States, 300 F.2d 878, 880 (9th Cir. 1962).
The certification records are derived from a computerized database maintained by OAT. It is undisputed that the OAT certification records admitted in evidence were made on or around February 13, 2007, two months prior to Zeininger’s arrest, when OAT performed its annual certification tests on the Greenfield police department breathalyzer machine. See G. L. c. 233, § 78. It is also uncontroverted that the OAT certification records were made and maintained by public officials acting under a statutory duty to comply with a rigorous regulatory certification program that expressly charges them with producing the records at issue. G. L. c. 90, § 24K. 501 Code Mass. Regs. §§ 2.29, 2.38-2.40. This is sufficient to establish not only that the records were made in good faith, but that OAT, as an office, generates such records in the regular course of business and at the time of certification. G. L. c. 90, § 24K. 501 Code Mass. Regs. §§ 2.29, 2.38-2.40. See Commonwealth v. Thissell, 74 Mass. App. Ct. 773 , 777-778 (2009), S.C., 457 Mass. 191 (2010).
Zeininger argues, however, that the OAT certification records do not qualify for the business records exception to the hearsay proscription because they reflect the opinions and evaluative statements of a government official. Nardi, supra at 394. See Mattoon v. Pittsfield, 56 Mass. App. Ct. 124 , 135 (2002). This argument is misplaced. In Nardi, supra at 393, quoting Commonwealth v. Slavski, 245 Mass. 405 , 417 (1923), we held that an unavailable medical examiner’s opinion as to cause of death constituted hearsay because it concerned “causes and effects involving the exercise of judgment and discretion, expressions of opinion, and making conclusions,” which have not traditionally been within the ambit of the exception for public or official records, an exception not identical with the business records exception. [Note 14] See Julian v. Randazzo, 380 Mass. 391 , 393 (1980) (police report, comprising investigating officer’s opinion and recommendation, not admissible); Commonwealth v. Slavski, supra.
The OAT certification records are distinguishable. They memorialize the results of routine scientific measurements. The certification, rather than reflecting “judgment and discretion” or “expressions of opinion” of an OAT technician, merely signifies that the diagnostic testing and calibration procedures prescribed by regulation were satisfactorily performed. Vassallo v. Baxter Healthcare Corp., 428 Mass. 1 , 17 (1998) (scientific studies containing primarily factual data admissible as business records). Cf. Nardi, supra; Commonwealth v. Slavski, supra.
Zeininger also points to United States Supreme Court jurisprudence, which counsels that even if a record is prepared in the regular course of business, it does not qualify as a business or official record under the Federal rules of evidence if it was “calculated for use essentially in the court, not in business.” Melendez-Diaz, supra at 2538, quoting Palmer v. Hoffman, 318 U.S. 109, 114 (1943) (discussing accident reports). See Fed. R. Evid. 803(8). She misapprehends the significance of the quoted statement as it relates to the OAT certification records. First, although they share many similarities, Massachusetts courts follow statutory and common law of evidence, not the Federal rules. More importantly, the OAT certification records are not “calculated for use essentially in the court.” Palmer v. Hoffman, supra. Rather, OAT prepares the certification records in concert with its statutory charge to administer an internal regulatory program that standardizes “satisfactory methods, techniques and criteria for the conduct of [breathalyzer] tests.” G. L. c. 90, § 24K. In this sense the records are “typical of entries made systematically or as a matter of routine to . . . provide internal controls,” which are admissible under the Federal rules and the common law (emphasis supplied). Palmer v. Hoffman, supra at 113. In sum, the OAT certification records were admissible under the business records exception to the hearsay rule. G. L. c. 233, § 78.
b. Confrontation clause. The confrontation clause of the Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The United States Supreme Court has held that the confrontation clause guarantees a defendant the opportunity to confront any person, in the “crucible of cross- examination,” whose “testimonial” statements are introduced against him. Crawford, supra at 50-52, 61. While Crawford, supra at 51-52, 68, endeavored to “leave for another day any effort to spell out a comprehensive definition of ‘testimonial,’ ” the Court instructed that “[v]arious formulations of this core class of ‘testimonial’ statements exist.” These definitions, the Court stated, “all share a common nucleus” as follows:
” ‘ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,’ . . . ‘extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions;’ White. v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., joined by Scalia, J., concurring in part and concurring in the judgment), ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ ”
Id. at 51-52. In Melendez-Diaz, supra at 2532, the Supreme Court held that certificates of drug analysis, memorializing the results of forensic analysis performed to determine the identity and quantity of a chemical substance suspected to be a controlled substance, fall within this “core class of testimonial statements.” See G. L. c. 94C, § 31; G. L. c. 111, § 13. Although denominated “certificates,” the Court held the documents were “quite plainly” “ex parte out-of-court affidavits.” Melendez-Diaz, supra at 2532, 2542. The Court held that the certificates of analysis were “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” and in fact, it was established by statute that the “sole purpose” of the analysis was to provide prima facie evidence in criminal prosecutions. Id. at 2532, quoting Crawford, supra at 52. See G. L. c. 111, § 13.
The Court also repudiated the argument that the certificates of analysis were admissible without confrontation because they were “akin to the types of official and business records admissible at common law.” Melendez-Diaz, supra at 2538. The Court held that it was the testimonial character of the certificates of analysis that triggered the confrontation right, notwithstanding their admissibility under State rules of evidence. Id. at 2539- 2540. See Commonwealth v. Gonsalves, 445 Mass. 1 , 14 (2005), cert. denied, 548 U.S. 926 (2006). As such, the Court drew a distinction between traditionally admissible business records and testimony within the scope of the confrontation clause: “Business and public records are generally admissible absent confrontation . . . because — having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial — they are not testimonial.” Melendez-Diaz, supra.
Here, the OAT certification records are outside the orbit of the “common nucleus” of the various definitions of “testimonial” set forth in Crawford, supra at 51-52. See Rembusch v. State, 836 N.E.2d 979, 982 (Ind. Ct. App. 2005); State v. Bergin, 231 Or. App. 36, 41-42 (2009). Whereas certificates of drug analysis were offered as direct proof of an element of the offense charged, Melendez-Diaz, supra at 2532, the OAT certification records bear only on the admissibility or credibility of the evidence. The OAT certification records are offered, first, as proof that the Commonwealth has met a foundational predicate to admissibility of the breathalyzer test results and, then, either through direct testimony or by implication, as evidence bolstering the reliability of those results. See Commonwealth v. Durning, 406 Mass. 485 , 492-494 (1990); Mass. G. Evid. § 104(e), at 9 (2011). See also note 13, supra. We agree with the Court of Appeals of Oregon, which concluded that such records “bear a more attenuated relationship to conviction: They support one fact (the accuracy of the machine) that, in turn, supports another fact that can establish guilt (blood alcohol level).” State v. Bergin, supra at 41. Indeed, it appears that the Supreme Court has already acknowledged this attenuation, stating in Melendez-Diaz, supra at 2532 n.1: “Contrary to the dissent’s suggestion . . . we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case. . . . [D]ocuments prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.”
Further, the OAT certification records were made “for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial,” the distinction the Supreme Court forged between business records traditionally admissible absent confrontation and testimonial records subject to confrontation. Melendez-Diaz, supra at 2539-2540. See Crawford, supra at 56. The OAT certification records are maintained in the routine administration of the affairs of an administrative agency tasked with quality control, not with supplying evidence “taken for use at trial.” Michigan v. Bryant, 131 S. Ct. 1143, 1155 (2011) (“objective of the Confrontation Clause” is to provide opportunity to cross-examine when statements are “taken for use at trial”). See 501 Code Mass. Regs. § 2.01 (purpose of OAT regulations is to establish uniform “rules . . . for the training and certification of breath testing operators, instructors and devices”). The primary purpose of OAT certification is to guarantee, internally, as a matter of course, and when necessary, in court, the accuracy and standardization of all breathalyzer testing equipment across the various police departments of the Commonwealth. See 501 Code Mass. Regs. § 2.26 (“uniform statewide Certification Instruction program”), § 2.38 (“maintain a list of approved Infrared Breath Testing instruments and simulators [meeting specific criteria]”). At the time of certification, the hypothetical use of that record in an as-yet-unknown criminal proceeding is merely an ancillary purpose, subordinate in importance to the “administration of the entity’s affairs.” Melendez-Diaz, supra at 2539. See Crawford, supra at 56.
In comparison to a chemist who authors certificates of drug analysis, a technician certifying a breathalyzer machine has no “particular prosecutorial use in mind.” State v. Bergin, supra. The certificate of analysis is particularized and performed in aid of a prosecution seeking to prove the commission of a past act and, thus, resembles the type of “ex parte in-court testimony or its functional equivalent” at the nucleus of the confrontation clause. Crawford, supra at 51, 52. That the OAT certification records are generalized and performed prospectively in primary aid of the administration of a regulatory program makes all the difference. See Crawford, supra at 51-52. See also State v. Bergin, supra. Consequently, we conclude that the OAT certification records are nontestimonial, and their admission without the live testimony of the technician who prepared them did not violate the confrontation clause of the Sixth Amendment.
4. Conclusion. For the foregoing reasons, we decline to disturb Zeininger’s conviction. Judgment affirmed.”
Attorney Ronald A. Sellon