Ramirez v. State

county to consider the in that court trial the amended Indiana light

petition affirm. We 11-8-8-22.

Code Section

Affirmed. J., MAY, J.,

BAILEY, concur. RAMIREZ, Appellant-

Francisco J.

Defendant, Indiana, Appellee-Plaintiff.

STATE

No. 65A01-0911-CR-543. Appeals

Court of of Indiana.

May 2010.

(2009). We affirm the judgment of the trial court. History

Facts and Procedural On October Officer Brennan Reese of the Mount Depart- Vernon Police patrol ment was on in his cruiser when he gray saw a Ford Mustang pass by. The Mustang appeared speeding. to be Officer began Reese to follow it and activated his radar. The Mustang was travelling at thirty-eight per miles hour in a thirty mile per hour zone. Officer Reese also saw the Gooden, Vernon, IN, William W. Mt. vehicle weave back and forth within its Attorney Appellant. lane, line, fog cross the nearly hit a Zoeller, Gregory F. Attorney General of curb. Indiana, IN, Indianapolis, Ellen H. Mei- Officer Reese initiated a traffic stop and laender, General, Deputy Attorney India- approached the car. Ramirez was behind IN, napolis, Attorneys for Appellee. the wheel. Officer Reese asked Ramirez produce his driver's license. He ob- OPINION poor served Ramirez exhibit manual dex- terity VAIDIK, retrieving it. Officer Reese Judge. also noticed a strong odor of alcohol and Summary Case eyes Ramirez's were bloodshot. Offi- Francisco appeals J. Ramirez his convic cer Reese had Ramirez step out of the tion for A Class misdemeanor operating a vehicle perform three sobriety field vehicle while intoxicated. Ramirez ar tests. Ramirez failed them all. Officer rested for drunk driving аnd failed a chem Reese then asked Ramirez to take a chem- trial, ical breath test. At the State intro ical test. agreed. breath Ramirez duced Ramirez's breath test results as well Officer Reese brought jail Ramirez to as a certificate of compliance verifying rou where he administered the breath test us- inspection tine equip the breath test ing a BAC DataMaster. The DataMaster ment. The official who had inspected measures the conсentration of alcohol in a equipment inspection suspect's A subject breath. blows into the testify. certificate did not argues Ramirez machine, prints and the DataMaster an that the admission of the State's evidence evidence ticket displaying subject's violated his right Sixth Amendment to con (BAC). blood-alcohol content Ramirez's frontation because he was unable to cross- printout showed that he had BAC of examine the equipment certifier. We hold 09. thаt the introduction of the State's exhibits did not offend Ramirez's charged confrontation The State Ramirez with AClass rights, inspection as the certificate was not misdemeanor operating a vehicle while in- purview testimonial evidence within the toxicated endangering person, Ind.Code 9-30-5-2(a), § and Class C misdemeanor (2004), S.Ct. 158 L.Ed.2d 177 operating a vehicle while intoxicated with - equivalent Massachusetts, an alcohol concentration to .08 Melendez-Diaz U.S .-, 174 L.Ed.2d 314 or 9-80-5-1(a). more, § id. both Ra- were trial, ‍​​​‌‌‌​‌‌‌‌‌‌‌‌​‌​​‌​‌‌​​​‌​‌​‌‌‌​​‌‌‌‌‌​​​‌​‌‌​‍State offered of his admitted in violation Sixth

At as well as to confrontation. test results Amendment breath mirez's verifying certificate official Data- of a chemical breath of Officer Reese's results

routine by issued the prosecution certificate was are inadmissible in a The test Master. Toxicology. of Department the test State while intoxicated unless operating Indiana question the DataMaster It recited used equipment, test chemicals оperator, August on examined test, had been techniques in the and test have been good operating was in instrument that the pro the approved accordance with rules accuracy condition, that it satisfied the and University mulgated by the Indiana School by the Depart- established requirements Pharmacology Department Medicine of of Toxicology Regulations. The doe- ment of 9-30-6-5(d); § Toxicology. and Ind.Code by a at the signed director was ument (Ind. N.E.2d Fields v. Tоxicology. The certificate of Department reh'g, on Ct.App.2004), clarified Certification, read, of "This Letter further trans. de (Ind.Ct.App.2004), N.E.2d Department of Toxicol- by the State issued of a Accordingly, nied. for the results of kept on file the office must be ogy, admissible, chemical breath test to be may and the Court be the Cireuit Clerk must be requirements three foundational for use in Court." as needed duplicated (1) person the who administered satisfied: p. ap- 98. Officer Reеse Appellant's App. by Depart the the test must be certified testify for the and at trial to peared (2) Toxicology, equipment the used ment of results, Ramirez's breath test authenticate inspected in the test must have been and Da- had examined the the official who but by Department of Toxicolo approved the inspection the completed and taMaster (8) fol gy, operator must have present. was not certificate approvеd by the De procedures lowed the the admission of the objected Ramirez to Toxicology. Lloyd, State v. partment of certificate and the test results. (Ind.Ct.App.2003). unable to cross- argued He that he was by Department of issued Certificates who the cer- examine the test Toxicology indicating breath tificate, introduction of the document so equipment good operating is condition confronta- violated his Sixth Amendment prima trial and constitute arе admissible at argued He further that since rights. tion (1) equipment facie evidence that the require- a foundational the certificate was approved by Depart inspected results, test his inabili- ment for breath (2) proper was in Toxicology ment of ty precluded to cross-examine the certifier working condition on the date the breath printout. the DataMaster admission of ap if the date of test was administered objec- The trial court overruled Rаmirez's days more than 180 before proval was not both exhibits. tions and admitted 9-30-6-5(c); § the date of the test. I.C. jury guilty found Ramirez of both The Nivens v. 832 N.E.2d merged The trial court the con- charges. (Ind.Ct.App.2005), reh'g denied. The judgment and entered on the victions mandates that certifi Indiana Code also ap- A misdemeanor. Ramirez now Class with De in accordance cates issued peals. Toxicology rules "shall be sent partment Discussion and Decision circuit court each to the сlerk operator, county where the breath that the DataMaster in- argues Ramirez are used to ad- equipment, or chemicals test results spection certificate breath § tests." IC. 9-80-6- affidavits, minister breath such as custodial examina- 5(b). tions, prior testimony that the defendant cross-examine, was unable to or similar the Sixth Amendment Meanwhile pretrial statements declarants provides to the United States Constitution reasonably expect would to be used prоsecutions, all eriminal the ac that "[iJn prosecutorially; ... con enjoy right shall to be cused (2) extrajudicial statements con- against him." fronted with the witnesses tained formalized testimonial materi- guaranteed by confrontation als, affidavits, depositions, prior such as applicable Amendment is made Sixth confessions; testimony, or to the states the Due Process Clause (3) statements that were made under the Fourteenth Amendment. Pointer v. cireumstances which would lead an ob- Texas, 1065, 85 S.Ct. 13 380 U.S. jective reasonably witness to believe (1965). L.Ed.2d 923 that the statement would be available Washington, In v. 541 Crawford for at a trial. use later 1354, 36, 124 158 L.Ed.2d 177 U.S. S.Ct. State, Pendergrass 703, 913 N.E.2d 706 (2004), Supreme the United States Court (Ind.2009) (quoting Crawford, 541 U.S. at that bars held Confrontation Clause 51-52, 1354), 124 pending; S.Ct. cert. see out-of-court, admission of testimonial Davis, 822, also 547 U.S. at 126 S.Ct. 2266 statements criminal trials unless the (holding that in response statements made testify is unavailable to and the declarant police to interrogatiоn are testimonial a prior opportunity defendant had for objectively "when the cireumstances indi 68, Id. at 124 cross-examination. S.Ct. that ongoing emergen- cate there is no ... 1354; see also Davis v. 547 ey, primary purpose and that the of the 813, 821-22, 2266, U.S. 126 S.Ct. 165 interrogation is to or past establish (2006). L.Ed.2d 224 "Where testimonial potentially events to crimi relevant later issue, only statements are at indicium nal prosecution"). reliability satisfy sufficient to constitu Following Crawford, tional demands is the one the this Court on sev Constitution eral actually prescribes: confrontation." occasions addressed whether breath 68-69, ‍​​​‌‌‌​‌‌‌‌‌‌‌‌​‌​​‌​‌‌​​​‌​‌​‌‌‌​​‌‌‌‌‌​​​‌​‌‌​‍Crawford, at 124 are U.S. S.Ct. certificates testimonial A critical aspect implicating 1354. documents the Sixth Amend Crawford holding application only confrontation, is its to "testimo ment to and we rou Davis, 821, nial" statements. at tinely that concluded the certificates are 2266. "It is the S.Ct. testimonial char State, nontestimonial. See Johnson separates acter of the statement that it 649, N.E.2d 660 (Ind.Ct.App.2008); Jarrell that, hearsay subject (Ind.Ct. from other State, while 1022, 852 N.E.2d upon hearsay traditional limitations evi App.2006); Rembusch v. 836 N.E.2d dence, subject is not to the Confrontation denied, (Ind.Ct.App.2005), reh'g Clause." Id. The de denied; trans. Napier v. 820 N.E.2d provide comprehensive clined to defini (Ind.Ct.App.2005), modified "testimonial," tion of 541 U.S. at 124 part reh'g, (Ind.Ct.App. on 827 N.E.2d 565 but it identified "various formu 2005), denied, denied, trans. cert. 546 U.S. lations" of the "core class of 'testimonial 164 L.Ed.2d 134 statements": (2006). (1) part We reasoned in judicial

(1) prepared certifiсates are not at a parte ex in-court or its is, functional equivalent-that proceeding during police interrogation, material or Melendez-Diaz, 982, (2) law enforcement seized Rembusch, at the cer and do re not sworn affidavits from the defendant white substance tificates are materi testimonial sembling not contain formalized cocaine. Id. at 2530. The State analysis" (8) introduced three "certificates of als, id., although inspection certifi purposes of crimi prepared cates are indicating at trial that the seized substance of breath-test "certification litigation, nal weight. of a certain Id. at was cocaine the direct inves removed from machines is certificates were sworn to 2531. The any of whether proof direct tigation or laboratory analysts notary before a state operated has a vehicle particular defendant trial court admitted the public. Id. The intoxiсated; are not the certificates ana certificates into evidence without the any anticipation litigation lysts' testimony. Id. A divided Su live respect to implicat case or with particular preme Court held admission Jarrell, 852 ing any specific defendant." violated the defendant's the lab certificates (citations omitted). Our N.E.2d at 1026 rights. confrontation Id. at 2532. The substantially in accord with holdings were the certificates were Court held jurisdictions. of other See thе decisions "quite plainly 'declaration[s] affidavits: (Alaska State, 55, Abyo v. 166 P.3d 60 down and to the de- facts written sworn v. Eisenberg, Bohsamcurt Ct.App.2007); clarant before an officer authorized to ad (Ariz.Ct. 182, 471, 212 Ariz. 129 P.3d 480 (quoting minister oaths'" Id. Black's Ga.App. Pierce v. 278 App.2006); (8th 2004)). Dictionary Law 62 ed. The 235, (2006); 162, v. 628 S.E.2d 288 State certificates were admitted to Marshall, 396, 199, 114 Hawai'i 163 P.3d in the substance found the defendant's Kim, (Haw.Ct.App.2007); People 205 v. possession precise was cocaine-"the testi 717, 92, Ill.App.3d 307 Ill.Dec. 368 859 mony analysts expected would be Dukes, 92, (2006); 94-95 v. State provide if called at trial." Id. Further 958, 914, 174 917 Kan.App.2d 38 P.3d more, the certificates had been "'made Walther, (2008); v. Commonwealth 189 under cireumstances which would lead an 570, Carter, (Ky.2006); 575 v. S.W.3d State objective reasonably to witness believe 427, 1001, (2005); 326 Mont. 114 P.3d 1007 that the statement would be available for Fischer, 963, v. 272 State Neb. 726 N.W.2d trial," (quoting at a later use id. Craw 176, (2007); Sweet, v. 182-83 52, 1354), ford, 541 U.S. at 357, 809, (2008); 949 A.2d N.J. Green they in were fact for the sole DeMarco, 451, v. 11 Misc.3d 812 N.Y.S.2d purpose providing evidence a subse Norman, 772, (N.Y.Sup.Ct.2005); State v. quent prosecution. Id. The conclud Court Or.App. 125 P.3d 18-19 2 ed that the certificates were testimonial in (2005); City George, Salt Lake 189 P.3d triggered nature and the defendant's Sixth (Utah Ct.App.2008). But see protections. Amendment Id. (Fla. Shiver v. 900 So.2d view); expressed The dissent Melendez-Diaz Dist.Ct.App.2005) (contrary People Orpin, implications 8 Misc.3d 796 N.Y.S.2d concern over the decision's (N.Y.Just.Ct.2005). equipment calibration records: the independent Consider contractor recently Supreme The Court revisited testing who calibrated the machine. has meaning and elaborated on the case, of "testimonial" the realm of foren within At least a routine where the unmistakable, appears testing. sic chemical machine's result See Melendez-Diaz - accuracy depends entirely that result's Massachusetts, -, -, (2009). 2527, 2532, 174 on the machine's calibration. The cali- L.Ed.2d 314 bration, turn, only by question But at a minimum it leaves the proved can be type that he or unrеsolved and demands the same the contractor's certification That job properly. serutiny certifica- that we have undertaken since she did a testimonial state- appears analyzed tion to be We the nature of in Crawford. Johnson, It Jarrell, definition: is spection ment under Court's certificates in Rembusch, statement, and Napier, and we believe our formal, offered out-of-court asserted, and for the truth of the matter conclusion that the certificates are nontes- prosecu- of later purpose made for the timonial remains valid today. The certifi clear, tion. -It is not under Court's comprise parte cates do not ex in-court why contractor ruling, independent equivalent. or its functional analyst. is not also They are not formalized testimonial mate Moreover, rials like sworn affidavits. (inter- J., (Kennedy, dissenting) Id. at 2545 contemplate certificates use in omitted). nal citation re- trials, they criminаl completed are in ad sponded: any specific alleged vance of drunk-driving Contrary suggestion, to the dissent's incident and breath test administration hold, we do not and it is not the and are not prosecution created for the testimony may anyone whose be any particular defendant. We thus reaf chain establishing relevant of cus- firm our position verifying certificates tody, authenticity sample, of the or aceu- routine of breath test instru device, racy testing appear must ments are nontestimonial. Jurisdictions part prosecution's as that have question post- addressed this Additionally, pre- case.... documents generally Melendez-Diaz have reached the pared regular in equip- the course of same conclusion. See United States v. may ment qualify maintenance well as Forstell, 578, F.Supp2d 580-82 nontestimonial records. (E.D.Va.2009) (certificates accuracy (internal omitted). n. Id. at 2532 citations device, fоrk, speed tuning radar and Intox- This is the first time since Melen nontestimonial); ilyzer held Fitz that dez-Diaz we have reexamined wheth water, 354, 122 Hawai'i 227 P.3d inspection er breath test certificates are (2010) (exhibit certifying accuracy police subject testimonial and ‍​​​‌‌‌​‌‌‌‌‌‌‌‌​‌​​‌​‌‌​​​‌​‌​‌‌‌​​‌‌‌‌‌​​​‌​‌‌​‍to the confronta nontestimonial); speedometer officer's held right, tion but we see no reason that Me Bergin, Or.App. State v. 217 P.3d holdings lendez-Diaz disturbs this Court's (2009) 1087, 1089-90 (concluding that Me Johnson, Jarrell, Rembusch, in Napi prior lendеz-Diaz does not Ore overrule contrary, foregoing er. To the the lan gon finding Intoxilyzer case law certifi guage from the nontestimonial). cates People But see appears prior to leave our decisions intact. Carreira, 27 Misc.3d 893 N.Y.S.2d majority rejects proposition The the that Ct.2010) (Intoxi- (N.Y.City & n. 1 in "accu anyone establishing involved the testimonial; lyzer inspection records excluded as racy testing testify device" must ndez-Diaz footnote "winks at Mele pеrson. It that "documents further states the issue" "excruciatingly but avoids an prepared regular equip course of swering question of whether or not its may qualify ment maintenance well as non- holding specifically covers calibration acknowledge testimonial records." We records"). testing language this is not decisive. Melen dez-Diaz does not hold that routine cali Here the State offered a certificate of always inspection records are compliance bration nontestimonial. for the Data- (2009), leading opposite in Ramirez's chemical breath as to a result from used Master by majority. the result reached prepared was follow- The certificate test. Melendez-Diaz, analysis certificates of completed and was inspection ing routine case, and the Certificate the current are Ramirez's arrest months before over two live, functionally in-court identical to testi administration. To be and breath test mony. Furthermore, just as the certifi sure, created for use in the document was proved cates in Melendes-Diaz a fact nec judicial pro- investigations criminal case, essary specifically for the State's that it could be ceedings-even reflecting possessed the substance Melendez-Diaz as needed for use Court" "duplicated particular cocaine, for a but it was not was see id. at the Certificate nеcessary in this case was to establish that any one defendant. Nor prosecution of the DataMaster was in with formal- it a sworn affidavit or other by requirements Depart issued In line with ized testimonial document. § Toxicology. ment of See Ind.Code 9-30- foregoing, we find the certificate was 6-5(d). and Me- nontestimonial under Crawford lendez-Diaz, and the admission of the cer- Melendez-Diaz, Furthermore, tificate without live from the key Court noted that a consideration for not run afоul of certifier did Ramirez's purposes analysis of Sixth Amendment rights. Sixth Amendment We conclude is whether the creator of the document at that the trial court did not err admit- reasonably issue could have "that believed

ting the DataMaster certificate the statement would available for be use and Ramirez's breath test results. Melendez-Diaz, at a later trial." (quoting

Affirmed. at 2582 541 U.S. RILEY, J., concurs. (2004)) added). (emphasis L.Ed.2d the current plainly the Certificate BARTEAU, S.J., concurs in result with provides "may duрlicated it be as separate opinion. Appellant's needed for use in Court." BARTEAU, in Judge, concurring Senior App. p. provides 98. The Certificate also result. that it pursuant is intended "for use to the judgment implied I would also affirm the of the Indiana law for consent to test for court, Thus, respectfully disagree trial but I with intoxication." Id. the who majority's the the conclusion that the State's executed Certificate did so with the understanding that in Inspection Compliance Certifiсate of and the Certificate was support investigations tended to criminal ("Certificate"), of Breath Test Instruments prosecutions which was used in case to and would be available this for use at a trial. compliance the DataMaster was in with Department Toxicology's accuracy the of Supreme The Indiana Court's recent de requirements, in is nontestimonial nature. State, in Pendergrass cision v. 913 N.E.2d I therefore conclude that of that admission (Ind.2009), petitiоn filed, cert. also document violated Ramirez's Sixth Amend- provides guidance. Pendergrass, useful In against ment to confront witnesses molesting a defendant was tried for his him. daughter. daughter at Id. 704. His had abortion, I Supreme pregnant read the decision in and had an Court's become - the wanted to determine whether the Massachusetts, State Melendez-Diaz U.S. -, 129 S.Ct. 174 L.Ed.2d 314 defendant was the father of the aborted testing performed, Thus, fetus. Id. Forensic my in opinion, nature. the trial by its sought admitting to introduce into court abused discretion and the State pre that were Certificate, evidence two documents State's Exhibit the into evi- analyst at the Indiana denee because admission of the Certificate by a forensic pared violated Ramirez's Laboratory. pro- Police Id. One Sixth Amendment Certificate, Analysis," a of tections. Without documents was "Certificate by analyst presented a lab and State no evidence to establish which was inventory of the evidence the DataMaster device that Officer consisted of lab, a the tests Reese used to test Ramirez ap- submitted to the list of had been proved in accordance performed, ‍​​​‌‌‌​‌‌‌‌‌‌‌‌​‌​​‌​‌‌​​​‌​‌​‌‌‌​​‌‌‌‌‌​​​‌​‌‌​‍and indications where with rules adopted by Department Toxicology. evidence and test results were sent. Id. that the Supreme Our Court determined Therefore, the trial court also abused its in Analysis by admitting was testimonial discretion State's Eixhibit Certificate nature because it fitted "the definition of results, the DataMaster into evidence. 9-830-6-5(d). $ as clarified Melendez-Diaz." See 1.C. id. at 707. See I acknowledge this Court's line of cases signer holding In this of the Certifi that certificates of cate, in analyst Pendergrass, like the could like the Certificate at issue reasonably have believed that the Certifi this case are not testimonial nature. cate would be available for use at a later (Ind. State, See Johnson v. 879 N.E.2d 649 Furthermore, trial. like the Cеrtificate of Ct.App.2008); State, Jarrell v. 852 N.E.2d Analysis Pendergrass, Certificate (Ind.Ct.App.2006); Rembusch live, equivalent case was the in- this 836 N.E.2d 979 (Ind.Ct.App.2005), denied, denied; testimony, doing court "precisely reh'g what and Napier transfer on examination...." witness does direct (Ind.Ct.App.2005), 820 N.5.2d 144 (Ind.Ct. at (quoting reh'g, Id. Davis v. on 827 N.E.2d 565 modified denied, denied, App.2005), cert. transfer (2006)) omitted). 546 U.S. 164 L.Ed.2d (emphasis L.Ed. 2d (2006). fact, the circumstances in Ramirez's All predate of those cases compelling applica case are more for the I Pendergrass, Melendez-Diaz and protections tion of Sixth Amendment than decline to follow them I because conclude in Pendergrass. Pendergrass circumstances that Melendez-Diaz and com provided by information pel finding the Certificate of that the Certificate in this Analysis Pendergrass, while no doubt case was testimonial nature. case, helpful appear to the State's does not Although I would hold that the trial necessary prove to have bеen an ele by admitting court erred the Certificate ment of the offenses at issue or a founda results, and the I DataMaster con contrast, By tional fact. in this case the clude that this case the error was harm State submitted the Certificate to a less. A denial of the of confrontation statutorily mandated condition to the pros is error sup harmless where the evidence case, namely ecution of the that the Data- porting convincing the cоnviction is so Depart Master was in with the jury a could not have found otherwise. Toxicology's requirements.

ment of (Ind. Garner holdings Based on the discussion and 2002). The record must establish I Pendergrass, Melendez-Diaz and con- there is no ‍​​​‌‌‌​‌‌‌‌‌‌‌‌​‌​​‌​‌‌​​​‌​‌​‌‌‌​​‌‌‌‌‌​​​‌​‌‌​‍substantial likelihood that the clude that the is testimonial in evidence to the verdiet. Certificate contributed Bow- (Ind. State, 577 N.E.2d

man X.A.S., In re The PATERNITY 1991). OF H.S., Appellant-Petitioner, jury found Ramirez In this operating a vehicle while intoxi- guilty of endangering person, a a cated a manner S.K., Appellee-Respondent. misdemeanor, operating a ve- class A No. 49A02-0910-JV-1023. con- hicle while intoxicated with alcohol Appeals Court of of Indiana. more, to .08 or a equivalent centration misdemeanor, trial but court class C 4, 2010. June judgment entered a of conviction on the A alone. The evidence class misdemeanor supports op- Ramirez's conviction for

erating a while intoxicated in a vehicle is endangering

manner substan- notes, convincing.

tial and As the

Officer Reese observed Ramirez's vehicle back and forth within its lane and

weave fog line.

cross over the Ramirez's car hit a curb.

almost After Officer Reese Ramirez,

stopped he observed Ramirez

display poor dexterity manual Ra- addition,

mirez retrieved his license. strong

Ramirez emanated odor of alcohol red, eyes. Finally,

and had bloodshot Ra- sobriety all

mirez failed three field tests. evidence, upon

Based this I conclude that

there is not a substantial likelihood that erroneously admitted DataMaster test

results contributed to Ramirez conviction A misdemeanor charge. class

Therefore, may that conviction stand de-

spite the erroneous admission of the Data-

Master evidence. reasons,

For these I respectfully concur

in result. Wylie, IN,

Anita Indianapolis, Attorney Appellant.

Case Details

Case Name: Ramirez v. State

Court Name: Indiana Court of Appeals

Date Published: May 28, 2010

Citation: 928 N.E.2d 214

Docket Number: 65A01-0911-CR-543

Court Abbreviation: Ind. Ct. App.