66 V.I. 572
Supreme Court of The Virgin Is...2017Background
- On Dec. 23, 2013, police responded to a two-vehicle accident on St. Thomas; Kehli M. Ubiles was identified at the scene, smelled of alcohol, and returned to his vehicle, started the engine, and attempted to drive away.
- Officer Charles conducted field sobriety tests (HGN, walk-and-turn, one-leg stand), which Ubiles failed, then administered an Intoximeter breath test showing a .218 BAC.
- The People called only Officer Charles at trial; she administered the breath test but was not responsible for calibrating/maintaining the machine and had not seen the operator’s manual. Lieutenant Rosalind Jarvis was identified as the person responsible for calibration but was not produced.
- Defense counsel did not object to admission of the breath test results at trial, affirmatively stated there was no objection, and later introduced the breath result as a defense exhibit; after the People rested defense moved for acquittal arguing a Confrontation Clause violation for failure to produce the calibrator.
- The jury convicted Ubiles of (1) driving under the influence (20 V.I.C. § 493(a)(1)) and (2) driving with prohibited BAC (20 V.I.C. § 493(a)(2)); the V.I. Supreme Court affirmed both convictions.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Ubiles) | Held |
|---|---|---|---|
| Whether failure to call the calibrating/maintenance witness (Lt. Jarvis) violated the Sixth Amendment Confrontation Clause | Admission of breath test through Officer Charles was proper; no Confrontation violation preserved because defense counsel waived objection | Confrontation Clause violated because the person responsible for calibration was not produced, preventing full cross-examination of machine reliability | Defense waived the claim by counsel’s affirmative no-objection and by introducing the report; appeal declines to reach constitutional merits (majority). |
| Whether evidence was sufficient to prove “drove, operated, or was in actual physical control” of a motor vehicle | Sufficient: Officer observed Ubiles in driver’s seat, with key in ignition, attempted to drive; field tests and BAC support conviction | Argued insufficient proof of actual physical control / operation on public highway | Substantial evidence supported actual physical control and BAC element; convictions affirmed. |
| Whether “on a public highway” is an element of 20 V.I.C. § 493 offenses | Not required; statute proscribes driving within the Territory and location language is surplusage | Argued maybe required by wording of charges | Court held “public highway” language is surplusage and not an element; prosecution need not prove it. |
| Whether admission of breath test required production of machine-calibration witness under Melendez-Diaz/Bullcoming principles | People argued calibration evidence not required to admit test and that cross-examination concerns go to weight, not admissibility | Ubiles argued Bullcoming/Melendez-Diaz require the technician (or calibration witness) when a test result is offered without opportunity for meaningful confrontation | Majority treated issue as waived; concurrence addressed merits and concluded no Confrontation violation because Officer Charles personally administered the test and calibration testimony would affect weight, not admissibility. |
Key Cases Cited
- Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (discusses confrontation rights for forensic reports and notes maintenance records may be nontestimonial)
- Bullcoming v. New Mexico, 564 U.S. 647 (2011) (one analyst may not testify to results generated solely by another analyst where Confrontation Clause applies)
- Davis v. Alaska, 415 U.S. 308 (1974) (Cross-examination to expose witness bias is constitutionally protected)
- Owens v. United States, 484 U.S. 554 (1988) (Confrontation Clause guarantees opportunity for effective cross-examination, not cross-examination of any particular form)