130 So. 3d 113
Miss. Ct. App.2013Background
- On March 28, 2009 Officer Daniel Soto stopped Raymond Drabicki after observing high speed driving, loss of vehicle control, and near collision during a pursuit. Soto smelled alcohol and administered a portable breath test and field sobriety tests indicating impairment.
- Drabicki was arrested and transported to the Madison Police Department for an Intoxilyzer 8000 test, which registered .16 BAC.
- At municipal court Drabicki pled no contest; the county court tried the case de novo and convicted him of first-offense DUI and reckless driving. The county court denied JNOV/new trial; the circuit court affirmed.
- On appeal Drabicki challenged (1) admissibility of Intoxilyzer calibration/certificates under the Confrontation Clause and Rule 902, (2) asserted false testimony by Officer Soto, and (3) the circuit court’s refusal to strike an untimely appellee brief.
- The majority affirmed the convictions, finding no Confrontation Clause violation, that the calibration certificate was self-authenticating under Rule 902, Officer Soto’s testimony was not shown to be false, and the court had discretion regarding the late appellee brief.
- A dissent argued the circuit court improperly failed to reverse after ordering dismissal for the appellee’s failure to timely file, and raised substantive doubts about admissibility of certified copies of calibration records under Rule 902(4).
Issues
| Issue | Plaintiff's Argument (Drabicki) | Defendant's Argument (City/State) | Held |
|---|---|---|---|
| Admissibility of Intoxilyzer calibration certificates / Confrontation Clause | Certificates inadmissible without in‑court testimony of calibrating officer; Melendez‑Diaz requires confrontation | Certificates and calibration records are nontestimonial; certification/statements show machine accuracy so confrontation not required | Admitted; no Confrontation Clause violation—Intoxilyzer calibration records are nontestimonial post‑Matthies and certificates were self‑authenticating under Rule 902 |
| Authentication method under Rule 902 (original v. certified copy) | Copy bore a stamped signature and uncertified agent’s sig; copy should be governed by Rule 902(4) and lacks shown authorization to certify | Certificate bore state seal and operator’s attesting signature; custodian’s stamp certified copy; defendant failed to preserve Rule 902(4) argument | Certificate admissible; operator’s attestation and state seal satisfied Rule 902(1); Rule 902(4) argument was procedurally barred and, alternatively, certification sufficed |
| Credibility of Officer Soto (alleged false testimony) | Soto lied about weather, near collision, and who asked about alcohol — conviction should be overturned | Video and record do not support claim of false testimony; no showing of perjury or material falsehood | Rejected — no evidence Soto gave false testimony; issue without merit |
| Failure to strike appellee’s late brief / consequences of appellee default | Circuit court should have struck untimely brief and reverse (or treat as confession of error); prior circuit order required reversal if appellee failed to file within 14 days | Court has discretion under Rule 31/31(d); precedent allows affirmance where record permits safe affirmation (Miller/Pannell standard) | Affirmed; court exercised discretion and found the record clear enough to affirm; dissent would apply Chatman standard and order reversal for appellee default |
Key Cases Cited
- Palmer v. City of Oxford, 860 So.2d 1203 (Miss. 2003) (trial-court evidentiary rulings reviewed for abuse of discretion)
- Harkins v. State, 735 So.2d 317 (Miss. 1999) (Intoxilyzer certificates admissible absent calibrating officer testimony)
- McIlwain v. State, 700 So.2d 586 (Miss. 1997) (calibrating-officer testimony required only when authenticity genuinely disputed)
- Melendez‑Diaz v. Massachusetts, 557 U.S. 305 (2009) (Confrontation Clause requires in‑court confrontation for testimonial forensic certificates)
- Matthies v. State, 85 So.3d 838 (Miss. 2012) (Intoxilyzer inspection/maintenance records are nontestimonial post‑Melendez‑Diaz)
- Pulliam v. State, 856 So.2d 461 (Miss. Ct. App. 2003) (Intoxilyzer calibration certificates bearing Crime Lab seal and attesting signature treated as self‑authenticating)
- Miller v. Pannell, 815 So.2d 1117 (Miss. 2002) (when appellee fails to file brief, court may treat as confession of error or affirm if record supports safe affirmance)
- Chatman v. State, 761 So.2d 851 (Miss. 2000) (failure of the State to file brief in criminal appeal is tantamount to confession of error but automatic reversal not required)