Ramirez v. State, No. 65A01-0911-CR-543 (Ind. App. 5/28/2010)

• Decision Date: 28 May 2010
• Docket Number: No. 65A01-0911-CR-543.,65A01-0911-CR-543.
• Parties: FRANCISCO J. RAMIREZ, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
• Court: Indiana Appellate Court

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FRANCISCO J. RAMIREZ, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.

No. 65A01-0911-CR-543.

Court of Appeals of Indiana.

May 28, 2010.

APPEAL FROM THE POSEY SUPERIOR COURT, The Honorable S. Brent Almon, Judge, Cause No. 65D01-0810-CM-465.

WILLIAM W. GOODEN, Mt. Vernon, Indiana, ATTORNEY FOR APPELLANT.

GREGORY F. ZOELLER, Attorney General of Indiana, Indianapolis, Indiana, ELLEN H. MEILAENDER, Deputy Attorney General Indianapolis, Indiana, ATTORNEYS FOR APPELLEE.

OPINION

VAIDIK, Judge.

Case Summary

Francisco J. Ramirez appeals his conviction for Class A misdemeanor operating a vehicle while intoxicated. Ramirez was arrested for drunk driving and failed a chemical breath test. At trial, the State introduced Ramirez's breath test results as well as a certificate of compliance verifying routine inspection of the breath test equipment. The official who had inspected the equipment and prepared the inspection certificate did not testify. Ramirez argues that the admission of the State's evidence violated his Sixth Amendment right to confrontation because he was unable to cross-examine the equipment certifier. We hold that the introduction of the State's exhibits did not offend Ramirez's confrontation rights, as the inspection certificate was not testimonial evidence within the purview of Crawford v. Washington, 541 U.S. 36 (2004), and Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). We affirm the judgment of the trial court.

Facts and Procedural History

On October 18, 2008, Officer Brennan Reese of the Mount Vernon Police Department was on patrol in his cruiser when he saw a gray Ford Mustang pass by. The Mustang appeared to be speeding. Officer Reese began to follow it and activated his radar. The Mustang was travelling at thirty-eight miles per hour in a thirty mile per hour zone. Officer Reese also saw the vehicle weave back and forth within its lane, cross the fog line, and nearly hit a curb.

Officer Reese initiated a traffic stop and approached the car. Ramirez was behind the wheel. Officer Reese asked Ramirez to produce his driver's license. He observed Ramirez exhibit poor manual dexterity while retrieving it. Officer Reese also noticed a strong odor of alcohol and that Ramirez's eyes were bloodshot. Officer Reese had Ramirez step out of the vehicle and perform three field sobriety tests. Ramirez failed them all. Officer Reese then asked Ramirez to take a chemical breath test. Ramirez agreed.

Officer Reese brought Ramirez to jail where he administered the breath test using a BAC DataMaster. The DataMaster measures the concentration of alcohol in a suspect's breath. A subject blows into the machine, and the DataMaster prints an evidence ticket displaying the subject's blood-alcohol content (BAC). Ramirez's test printout showed that he had a BAC of .09.

The State charged Ramirez with Class A misdemeanor operating a vehicle while intoxicated endangering a person, Ind. Code § 9-30-5-2(a), and Class C misdemeanor operating a vehicle while intoxicated with an alcohol concentration equivalent to .08 or more, id. § 9-30-5-1(a).

At trial, the State offered both Ramirez's breath test results as well as an official certificate of compliance verifying routine inspection of Officer Reese's DataMaster. The certificate was issued by the Indiana State Department of Toxicology. It recited that the DataMaster in question had been examined on August 12, 2008, that the instrument was in good operating condition, and that it satisfied the accuracy requirements established by the Department of Toxicology Regulations. The document was signed by a director at the Department of Toxicology. The certificate further read, "This Letter of Certification, issued by the State Department of Toxicology, must be kept on file in the office of the Clerk of the Circuit Court and may be duplicated as needed for use in Court." Appellant's App. p. 98. Officer Reese appeared at trial to testify for the State and authenticate Ramirez's breath test results, but the official who had examined the DataMaster and completed the inspection certificate was not present.

Ramirez objected to the admission of the inspection certificate and the test results. He argued that he was unable to cross-examine the person who prepared the certificate, so introduction of the document violated his Sixth Amendment confrontation rights. He further argued that since the certificate was a foundational requirement for the breath test results, his inability to cross-examine the certifier precluded admission of the DataMaster printout. The trial court overruled Ramirez's objections and admitted both exhibits.

The jury found Ramirez guilty of both charges. The trial court merged the convictions and entered judgment on the Class A misdemeanor. Ramirez now appeals.

Discussion and Decision

Ramirez argues that the DataMaster inspection certificate and breath test results were admitted in violation of his Sixth Amendment right to confrontation.

The results of a chemical breath test are inadmissible in a prosecution for operating while intoxicated unless the test operator, test equipment, chemicals used in the test, and test techniques have been approved in accordance with the rules promulgated by the Indiana University School of Medicine Department of Pharmacology and Toxicology. Ind. Code § 9-30-6-5(d); Fields v. State, 807 N.E.2d 106, 109 (Ind. Ct. App. 2004), clarified on reh'g, 811 N.E.2d 978 (Ind. Ct. App. 2004), trans. denied. Accordingly, for the results of a chemical breath test to be admissible, three foundational requirements must be satisfied: (1) the person who administered the test must be certified by the Department of Toxicology, (2) the equipment used in the test must have been inspected and approved by the Department of Toxicology, and (3) the operator must have followed the procedures approved by the Department of Toxicology. State v. Lloyd, 800 N.E.2d 196, 199 (Ind. Ct. App. 2003). Certificates issued by the Department of Toxicology indicating that breath test equipment is in good operating condition are admissible at trial and constitute prima facie evidence that the equipment (1) was inspected and approved by the Department of Toxicology and (2) was in proper working condition on the date the breath test was administered if the date of approval was not more than 180 days before the date of the test. I.C. § 9-30-6-5(c); Nivens v. State, 832 N.E.2d 1134, 1136 (Ind. Ct. App. 2005), reh'g denied. The Indiana Code also mandates that certificates issued in accordance with the Department of Toxicology rules "shall be sent to the clerk of the circuit court in each county where the breath test operator, equipment, or chemicals are used to administer breath tests." I.C. § 9-30-6-5(b).

Meanwhile the Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The right to confrontation guaranteed by the Sixth Amendment is made applicable to the states by the Due Process Clause of the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 406 (1965).

In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court held that the Confrontation Clause bars admission of out-of-court, testimonial statements in criminal trials unless the declarant is unavailable to testify and the defendant had a prior opportunity for cross-examination. Id. at 68; see also Davis v. Washington, 547 U.S. 813, 821-22 (2006). "Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Crawford, 541 U.S. at 68-69. A critical aspect of the Crawford holding is its application only to "testimonial" statements. Davis, 547 U.S. at 821. "It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause." Id. The Crawford majority declined to provide a comprehensive definition of "testimonial," 541 U.S. at 69, but it identified "various formulations" of the "core class of `testimonial' statements":

(1) ex parte in-court testimony or its functional equivalent—that is, 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;

(2) extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions;

(3) 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.

Pendergrass v. State, 913 N.E.2d 703, 706 (Ind. 2009) (quoting Crawford, 541 U.S. at 51-52), cert. pending; see also Davis, 547 U.S. at 822 (holding that statements made in response to police interrogation are testimonial "when the circumstances objectively indicate that there is no . . . ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution").

Following Crawford, this Court on several occasions addressed whether breath test inspection certificates are testimonial documents implicating the Sixth Amendment right to confrontation, and we routinely concluded that the certificates are nontestimonial. See Johnson v. State, 879 N.E.2d 649, 660 (Ind. Ct. App. 2008); Jarrell v. State, 852 N.E.2d 1022, 1026 (Ind. Ct. App. 2006); Rembusch v. State, 836 N.E.2d 979, 982 (Ind. Ct. App. 2005), reh'g denied, trans. denied; Napier v. State, 820 N.E.2d 144, 150 (Ind. Ct. App. 2005), modified in part on reh'g, 827 N.E.2d 565 (Ind. Ct. App. 2005), trans. denied, cert. denied, 546 U.S. 125 (2006)....