STATE OF MAINE v. JOSHUA BEELER
Cum-21-254
MAINE SUPREME JUDICIAL COURT
August 30, 2022
2022 ME 47
Decision: 2022 ME 47
Argued: May 11, 2022
Panel: STANFILL, C.J., and MEAD, JABAR, HORTON, CONNORS, and LAWRENCE JJ., and HUMPHREY, A.R.J.*
Reporter of Decisions
CONNORS,
[¶1] Joshua Beeler appeals from a judgment of conviction of criminal OUI with one previous OUI offense (Class D),
I. BACKGROUND
[¶2] Viewing the evidence in the light most favorable to the State, the jury rationally could have found the following facts. See State v. Athayde, 2022 ME 41, ¶ 2, 277 A.3d 387.
[¶3] On March 27, 2019, at approximately 10:51 p.m., a state trooper observed a vehicle with its hazard lights on stopped on the side of the northbound ramp of I-295 in Brunswick. When the trooper stopped to determine whether the motorist needed assistance, Beeler exited the vehicle from the driver‘s side and approached the trooper. The trooper observed that Beeler was unsteady on his feet, did not appear to be “in control of all [his] faculties,” and was wearing sunglasses, which the trooper thought was “odd.” The trooper also detected an odor of intoxicants coming from Beeler. Based on these observations and Beeler‘s difficulty in completing field sobriety tests, the trooper formed the opinion that Beeler was under the influence of intoxicants and arrested him. Beeler submitted to a breath test at the Cumberland County Jail. His breath test result was .15 grams of alcohol per 210 liters of breath.
[¶4] On May 6, 2019, Beeler was charged by complaint with one count of criminal OUI with one previous OUI offense and one count of violation of condition of release. See
[¶5] The court held a two-day jury trial on July 19 and 20, 2021, on the OUI charge.3 The State‘s evidence consisted of testimony of the trooper, testimony of the chemist from the Department of Health and Human Services who manages the state laboratory‘s breath testing program, a portion of a video from the cruiser‘s recording system, and the certified breath test result.
[¶6] The trooper testified that he is a certified Intoxilyzer operator and that he followed proper breath testing procedures. He further testified that a sticker from the Department indicating that the instrument had been approved for use was affixed to the Intoxilyzer used to measure Beeler‘s breath alcohol.
[¶7] The chemist testified extensively about the functioning of the Intoxilyzer,
[¶8] The chemist testified that before an Intoxilyzer takes a person‘s breath sample, the Intoxilyzer runs a series of internal diagnostic tests. One of these tests is a calibration check that uses a breath simulator that contains a solution with a known concentration of ethanol. Intoxilyzers approved for use in Maine use a known concentration of “.09,” which is unique.5 The .09 value is programmed into the Intoxilyzer at the laboratory and is password protected. If the Intoxilyzer is working properly, then it will read the concentration of the solution to within .01 of the known value of .09. See 10-144 C.M.R. ch. 269, § 1(2) (effective Sept. 1, 2010). If the Intoxilyzer does not pass the calibration check, then the Intoxilyzer will not allow the breath test to proceed.
[¶9] The chemist testified that the state laboratory produces the solution used in the breath test simulator and that its production requires technical knowledge, laboratory grade glassware, and laboratory grade water. Each bottle of solution is affixed with a label indicating that it was approved by the Department. The solution is provided to Maine law enforcement agencies that request it. The law enforcement agency‘s site coordinator—a person selected by the agency to perform tasks related to the Intoxilyzer—changes the simulator solution in the Intoxilyzer as needed. The chemist testified that she did not have any personal knowledge of what solution was used to generate Beeler‘s test result.
[¶10] Upon reviewing each step in the breath testing sequence as reflected on Beeler‘s breath test certificate, the chemist opined that the Intoxilyzer passed all internal diagnostic tests and produced a valid test report. The State offered the breath test certificate, and the court admitted it over Beeler‘s objection. At the end of the trial, the jury returned a verdict of guilty on the OUI charge, and the court entered a judgment of conviction on the complaint as charged.6 Beeler timely appeals.
II. DISCUSSION
A. The breath test result was admissible pursuant to 29-A M.R.S. § 2431 .
[¶11] Beeler argues that the trial court abused its discretion by admitting his breath test result because the State failed
[¶12] “We review questions of statutory interpretation de novo.” State v. Tozier, 2015 ME 57, ¶ 6, 115 A.3d 1240. “When interpreting a statute, we look first to the plain meaning in order to discern legislative intent, viewing the relevant provision in the context of the entire statutory scheme to generate a harmonious result.” Id. (quotation marks omitted). We review a trial court‘s “admission of evidence over an objection for lack of foundation for an abuse of discretion” and review the trial court‘s “underlying factual findings for clear error.” State v. Williamson, 2017 ME 108, ¶ 17, 163 A.3d 127 (quotation marks omitted); see also State v. Poulin, 1997 ME 160, ¶ 13, 697 A.2d 1276 (“A trial court‘s determination of the reliability of test results is a question of fact and is reviewed for clear error.“).
1. For a breath test result to be admissible, the State need only make a foundational showing that the test result is reliable and need not offer evidence establishing the elements listed in section 2431(2)(C).
[¶13] Title
[¶14] When a defendant requests a qualified witness, however, as Beeler did, the certificate no longer constitutes prima facie evidence of the matters set forth in section 2431(2)(C) that are identified by the defendant in his demand.
[¶15] Thus, the relevant inquiry here is whether the trial court erred by finding that the State had made a sufficient showing that Beeler‘s breath test result was reliable. We discern no error. The chemist testified at length about the functioning of Intoxilyzers generally—including that an Intoxilyzer will not proceed with a breath test if it fails any of its internal diagnostic tests—and about the procedures at the state laboratory regarding the maintenance and approval of Intoxilyzers. The chemist also testified about the Intoxilyzer used in Beeler‘s breath test, noting that the instrument had been approved before it was put into service and that it passed all testing when it was returned to the state laboratory. After addressing each step in the breath testing sequence as reflected on Beeler‘s breath test certificate and determining that the Intoxilyzer passed all internal diagnostic tests and calibration checks, the chemist opined that the Intoxilyzer produced a valid test result. The chemist‘s testimony alone was sufficient to establish that Beeler‘s breath test result was reliable, and the chemist‘s testimony coupled with the trooper‘s testimony—including that he was a certified Intoxilyzer operator, he followed proper breath testing procedures, and the Intoxilyzer bore the Department‘s stamp of approval—was more than sufficient.
2. When the State offers expert testimony regarding the functioning of a self-contained, breath-alcohol apparatus pursuant to section 2431(2)(K), the expert witness‘s testimony does not have to satisfy paragraphs H and I.
[¶16] As noted above,
[¶17] Paragraphs H and I allow the State to offer, through fact witnesses, prima facie evidence establishing the reliability of the breath test result. See Prima Facie Evidence, Black‘s Law Dictionary (11th ed. 2019) (defining “prima facie evidence” as “[e]vidence that will establish a fact or sustain a judgment unless contradictory evidence is produced“). Evidence that the breath testing equipment bore a stamp of approval from the Department is “prima facie evidence that the equipment was approved by the Department.”
[¶18] In the alternative, paragraph K allows the State to offer expert witness testimony “regarding the functioning
B. Admission of evidence about the “sticker” on the Intoxilyzer, the breath test certificate, and the “stamp” on the simulator solution did not violate the federal Confrontation Clause.
[¶19] Beeler argues that his right to confrontation was violated by the admission of evidence about the “sticker” on the Intoxilyzer, the breath test certificate, and the “stamp” on the simulator solution. We review the application of the Confrontation Clause de novo. Tozier, 2015 ME 57, ¶ 16, 115 A.3d 1240.
[¶20] The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”
[¶21] A testimonial statement is “typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Crawford, 541 U.S. at 51 (alteration and quotation marks omitted). A “core class of testimonial statements” includes
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; [and] 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.
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309-10 (2009) (quotation marks omitted).
[¶22] In determining whether an out-of-court statement qualifies as “testimonial,” courts look at whether the “primary purpose” of the statement is to establish or prove a fact to be used later in trial. Bullcoming v. New Mexico, 564 U.S. 647, 659 n.6 (2011). “When the primary purpose of a statement is not to create a record for trial, the admissibility of the statement is the concern of state and federal rules of evidence, not the Confrontation Clause.” Id. at 669 (Sotomayor, J., concurring) (alteration, citations, and quotation marks omitted).
1. The stamp of approval affixed to the Intoxilyzer indicating that the instrument had been approved in accordance with the Department‘s administrative regulations is nontestimonial.
[¶23] Beeler contends that his right to confrontation was violated by the admission of testimony about the stamp of approval affixed to the Intoxilyzer because the “sticker” is testimonial and evidence of it was offered through a witness that lacked personal knowledge. Not all out-of-court statements, however, create Sixth Amendment concerns. Crawford, 541 U.S. at 51. Business records and official records generally do not implicate the Confrontation Clause “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, 557 U.S. at 324. For example, “[d]ocuments prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.” Id. at 311 n.1.
[¶24] The overwhelming majority of other jurisdictions have concluded that maintenance, inspection, and calibration records for the Intoxilyzer are nontestimonial in nature. See People v. Ambrose, 506 P.3d 57, 74 (Colo. App. 2021) (“[N]either our supreme court nor the United States Supreme Court has decided whether a certificate used to establish that an intoxilyzer machine complies with state rules and regulations
[¶25] Support that the stamp of approval is nontestimonial can also be found in Maine case law addressing claims of a Sixth Amendment confrontation violation. See, e.g., State v. Ducasse, 2010 ME 117, ¶¶ 5, 13, 8 A.3d 1252 (concluding that a blood tube manufacturer‘s certificate of compliance was nontestimonial for purposes of the Confrontation Clause); State v. Tayman, 2008 ME 177, ¶ 21, 960 A.2d 1151 (concluding that Violations Bureau docket entries are mere contemporaneous documentation of regular business activity and do not contain accusations made after the fact and in preparation for trial); State v. Murphy, 2010 ME 28, ¶¶ 7-8, 26, 991 A.2d 35 (holding that admission of the Secretary of State‘s certificate as prima facie proof that notice of suspension had been sent to the defendant did not violate the Confrontation Clause).
[¶26] Applying the foregoing, we conclude that the sticker affixed to the Intoxilyzer indicating that it had been approved by the Department is nontestimonial. The stamp of approval is not the functional equivalent of ex parte testimony or an affidavit, it was not created in anticipation of a particular prosecution, and it does not contain test results. The primary purpose of the stamp of approval is to create a public record demonstrating satisfaction of agency rules requiring semiannual inspections of breath testing instruments. No
2. Admission of a breath test certificate without witness testimony does not offend the federal Confrontation Clause where the certificate is a machine-generated result.
[¶27] Beeler similarly argues that his confrontation right was violated by the admission of the Intoxilyzer certificate because the certificate is testimonial. In making such an argument, although Beeler seeks to distinguish our holding in Tozier, our conclusion in that decision, in which we held that—unlike the certificates in Melendez-Diaz and Bullcoming that contained forensic analysis—an Intoxilyzer certificate is nontestimonial because it merely “reports the results generated by a self-contained breath-alcohol testing machine,” squarely applies. Tozier, 2015 ME 57, ¶¶ 19-22, 115 A.3d 1240.9
3. Because the State did not offer evidence that the simulator solution bore a statement of either the manufacturer or the Department, the Confrontation Clause is not implicated.
[¶28] Even though Beeler acknowledges that the State offered “no evidence whatsoever” that the simulator solution bore a statement of the manufacturer or the Department, he posits that his right to confrontation was violated by the admission of the chemist‘s testimony that one of her job responsibilities is affixing stickers to simulator solution bottles to indicate that the solution has been approved by the Department. Beeler misapprehends the broad purpose of the chemist‘s testimony. Her testimony regarding the functioning of the Intoxilyzer was offered in lieu of evidence that the simulator solution used here bore a statement of the Department. The chemist‘s opinion that Beeler‘s breath test result was valid was based on her knowledge, training, and experience about the functioning of the Intoxilyzer and the contents of
Beeler‘s breath test certificate. The Confrontation Clause is concerned with the admission of testimonial statements by declarants who are not subject to cross-examination and not with whether the prosecution offered sufficient foundational evidence to support the admission of an expert witness‘s opinion. See Williams v. Illinois, 567 U.S. 50, 75-76 (2012). For the simple reason that the State did not offer any evidence that the simulator solution bore a statement of the Department, Beeler‘s right to confrontation was not implicated, much less violated.
C. Mandatory Minimum Sentence for Criminal OUI with a Previous OUI Offense within a Ten-Year Period
[¶29] When a person is convicted of criminal OUI with a previous OUI offense within a ten-year period,
[¶30] At Beeler‘s sentencing, the trial court correctly stated that the mandatory minimum sentence includes a suspension of the right to register a motor vehicle, but, when the court actually imposed sentence, it did not announce that requirement on the record.10 Furthermore, the judgment and commitment states that “the defendant‘s right to register a motor vehicle is suspended in accordance with [applicable statutes and the] notice of suspension incorporated herein,” but the notice of suspension is silent on this legislatively mandated requirement. Additionally, although Beeler acknowledged that, in order to restore his motor vehicle privileges, he will have to complete the Department‘s program for substance use disorder prevention and treatment, the judgment and commitment does not indicate that Beeler is required to participate in the program as part of his sentence as a multiple offender. Because the judgment and commitment and the notice of suspension incorporated by reference into the judgment are missing these mandatory sentencing provisions, we vacate the sentence and remand for resentencing.
The entry is:
Sentence vacated. Remanded for resentencing to address mandatory sentencing provisions. Judgment affirmed in all other respects.
Rory A. McNamara, Esq. (orally), Drake Law LLC, York, for appellant Joshua Beeler
Johnathan T. Sahrbeck, District Attorney, Alvah J. Chalifour, Jr., Asst. Dist. Atty., Prosecutorial District Two, Portland, for appellee State of Maine
Cumberland County Unified Criminal Docket docket number CR-2019-20372
FOR CLERK REFERENCE ONLY