McCarthy v. State
285 P.3d 285
Alaska Ct. App.2012Background
- McCarthy was stopped July 10, 2009 for weaving; breath test administered at station yielded .214 BAC.
- Trooper failed to audio-record the DUI processing; McCarthy moved to suppress the breath test and statements.
- Trial court found no custodial interrogation, the recording failure was inadvertent, and admitted the breath test.
- Two calibration reports verifying Datamaster calibration before and after the test were admitted; defense objected as confrontation issue.
- McCarthy sought to admit prior calibration reports (past 15 months) and a later Datamaster malfunction; trial court limited or excluded.
- Trial court declined a Thorne instruction and McCarthy appealed the rulings on suppression, confrontation, and evidentiary issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Suppression for lack of audio recording denied | McCarthy: recording failure taints admissibility | State: no custodial interrogation; inadvertent error | Waived; alternatively, proper without suppression |
| Admissibility of calibration reports without live testimony | Calibration reports non-testimonial; conj. not violated | Reports are testimonial under Melendez-Diaz | Calibration reports admissible; no Sixth Amendment violation |
| Jury instruction re negligence element in DUI | Valentine requires mental state for impairment | Valentine does not require extra negligence element | Valentine interpretation rejected; no extra negligence element needed |
| Admission of prior calibration reports (15 months) | Evidence shows instrument unreliability | Within working tolerance; irrelevant | Within tolerance; irrelevant; not admissible for prejudicial purpose |
| Exclusion of post-test Datamaster malfunction evidence | Malfunction evidence could cast doubt on result | Malfunction after test; not probative of July test | Properly excluded; not relevant to July test |
Key Cases Cited
- Melendez-Diaz v. Massachusetts, 557 U.S. 305 (U.S. 2009) (confrontation clause; testimonial certificates not exempt as business records)
- Aybо v. State, 166 P.3d 55 (Alaska App. 2007) (calibration reports not testimonial; business records)
- Valentine v. State, 155 P.3d 331 (Alaska App. 2007) (due process; implicit negligence element in DUI allowed)
- Hazelwood v. State, 946 P.2d 875 (Alaska 1997) (due process; proof of negligence for crime limited to particular circumstance)
- Gundersen v. Anchorage, 792 P.2d 673 (Alaska 1990) (right to independent test; due process remedy preserved)
- Thorne v. Department of Public Safety, 774 P.2d 1326 (Alaska 1989) (standards for preserving breath test evidence; Thorne instruction)