State v. Dukes

• Decision Date: 18 January 2008
• Docket Number: No. 96,563.,96,563.
• Citation: 174 P.3d 914
• Parties: STATE of Kansas, Appellee, v. Scott A. DUKES, Appellant.
• Court: Kansas Court of Appeals

174 P.3d 914

STATE of Kansas, Appellee, v. Scott A. DUKES, Appellant.

No. 96,563.

Court of Appeals of Kansas.

January 18, 2008.

Rick Kittel, of Kansas Appellate Defender Office, of Topeka, for appellant.

Jeffrey E. Evans, assistant district attorney, Nola Tedesco Foulston, district attorney, and Paul J. Morrison, attorney general, for appellee.

Before MARQUARDT, P.J., LEBEN, J., and KNUDSON, S.J.

LEBEN, J.

Scott Dukes' conviction for driving under the influence of alcohol was based upon the result of his alcohol breath test, which exceeded the legal limit. Such tests are reliable only if the testing machine is accurate; thus, the State presented evidence at trial that the machine had recently been calibrated and certified. Dukes also was convicted of driving while his license was suspended, a conviction dependent upon proof of the suspension. Dukes contends that proving proper calibration and certification of the machine—and his license suspension—without calling the witnesses who maintained his driving record and handled the calibration and certification process violated his constitutional right to confront the witnesses against him. Our review shows that most appellate courts have disagreed with Dukes' line of argument, and we do too.

These questions arise under the United States Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which held that what the Court defined as testimonial hearsay statements generally could not be admitted without a witness to cross-examine based on the right of confrontation guaranteed in criminal trials under the United States Constitution. The Supreme Court further clarified what amounts to testimonial statements in Davis v. Washington, 547 U.S. ___, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), but substantial questions still remain about what testimony would trigger the protection of the Confrontation Clause. See generally State v. Brown, 285 Kan. ___, 173 P.3d 612 (2007); Wright & Graham, 30A Federal Practice & Procedure: Evidence § 6371.2-6371.3 (Supp. 2007).

Fortunately, the questions before us are narrow ones. We address separately the admission of both the records of the breath-test machine's certification and Dukes' driving record. Dukes' sole argument on appeal is that the admission of this evidence violated his constitutional right to confront the witnesses against him; he has not claimed any other error in the admission of this evidence. For our purposes, we need to determine only whether the statements contained in these exhibits were testimonial under Crawford. See Davis, ___ U.S. at ___ - ___, 126 S.Ct. at ___ _ ___, 165 L.Ed.2d at 237-39 (suggesting that Confrontation Clause requirements apply only to testimonial hearsay statements). In addition to resolving the defendant's objection to the admission of this evidence, we address briefly two issues that both parties agree the district court failed to handle properly at sentencing.

The Admission without a Foundation Witness of Calibration Records for a Breath-Test Machine Does Not Violate the Confrontation Clause.

Dukes' breath test was performed on a machine called the Intoxilyzer 5000. Before a person's breath is tested, the machine is first checked using a solution with a known alcohol concentration. If the machine reading is within a limited range of the value of the known solution, it is considered properly calibrated and may be used. See Lincoln v. Kansas Dept. of Revenue, 18 Kan. App.2d 635, 636-37, 856 P.2d 1357, rev. denied 253 Kan. 859 (1993).

The State presented the testimony of Deputy Jeff Bartkoski, the custodian for Intoxilyzer 5000 records at the Sedgwick County Sheriff's office. During his testimony, the State obtained admission—without objection—of a packet containing documents showing that the machine was properly certified, that the officer who tested Dukes was certified to run the machine, and that the standard solution used had the required known value. Verification of the standard solution came from a lab employee who did not testify.

Two procedural hurdles might prevent us from addressing Dukes' objection. First, we held in Lincoln that evidence of the standard solution's certification is not required to gain admission of the breath-test result. 18 Kan.App.2d 635, Syl. ¶ 2, 856 P.2d 1357. But neither party has cited the Lincoln case, and it is not clear to us whether Dukes' challenge is limited just to the single page of the exhibit dealing with the standard solution or whether it also addresses the certification of the machine and its operator. Regardless, evidence of the test result is undoubtedly more persuasive to the jury when accompanied by evidence that all steps toward obtaining an accurate test result were taken — including certification of the solution used to calibrate the machine. For the purposes of this decision, we presume that Dukes is challenging the documents showing the certification of the machine, the machine operator, and the solution, and we will address Dukes' challenge to the admission of those documents. Second, Dukes did not raise these objections at trial, and ordinarily we do not consider objections raised for the first time on appeal. Brown, 285 Kan. ___, Syl. ¶ 12, 173 P.3d 612. Kansas courts have recognized an exception to this rule when failure to consider the untimely objection might result in a denial of fundamental rights, an exception explicitly applied to allow claims under Crawford. E.g., Brown, 285 Kan. ___, Syl. ¶ 13, 173 P.3d 612; State v. Laturner, 38 Kan.App.2d 193, 197, 163 P.3d 367 (2007). Because the defendant's objection implicates his fundamental right to confront the witnesses against him, we will address it even though it was not raised at trial.

We move, then, to the merits of the defendant's objection. We begin by noting that courts in 14 other jurisdictions have held that proof of the breath-test machine's calibration or certification is not testimonial evidence and thus not subject to Confrontation Clause restrictions under Crawford. Abyo v. State, 166 P.3d 55 (Alaska App.2007); Bohsancurt v. Eisenberg, 212 Ariz. 182, 129 P.3d 471 (Ct.App.2006); Rackoff v. State, 275 Ga.App. 737, 621 S.E.2d 841 (2005); State v. Marshall, 114 Hawai`i 396, 163 P.3d 199 (Ct.App. 2007), cert. denied 2007 WL 4358284, unpublished opinion (Hawaii December 13, 2007); People v. So Young Kim, 368 Ill.App.3d 717, 307 Ill.Dec. 92, 859 N.E.2d 92 (2006); Rembusch v. State, 836 N.E.2d 979 (Ind.App. 2005); Commonwealth v. Walther, 189 S.W.3d 570 (Ky.2006); State v. Carter, 326 Mont. 427, 114 P.3d 1001 (2005); State v. Fischer, 272 Neb. 963, 726 N.W.2d 176 (2007); State v. Godshalk, 381 N.J.Super. 326, 885 A.2d 969 (2005); Green v. DeMarco, 11 Misc.3d 451, 812 N.Y.S.2d 772 (N.Y.Sup. Ct.2005); People v. Kanhai, 8 Misc.3d 447, 797 N.Y.S.2d 870 (N.Y.City Crim.Ct.2005); State v. Shisler, 2006 WL 2846339, unpublished opinion (Ohio App. October 6, 2006); State v. Norman, 203 Or.App. 1, 125 P.3d 15 (2005), rev. denied 340 Or. 308, 132 P.3d 28 (2006); Luginbyhl v. Commonwealth, 46 Va. App. 460, 618 S.E.2d 347 (2005), aff'd 48 Va.App. 58, 628 S.E.2d 74 (2006). Similarly, the routine certification of an operator of a breath-test machine is not testimonial and thus not subject to Confrontation Clause restrictions. Napier v. State, 827 N.E.2d 565, 569 (Ind.App.2005), transfer denied 841 N.E.2d 178 (Ind.2005), cert. denied 546 U.S. 1215, 126 S.Ct. 1437, 164 L.Ed.2d 134 (2006); Luginbyhl, 46 Va.App. at 468-75, 618 S.E.2d 347.

We have found only one appellate decision to the contrary. Shiver v. State, 900 So.2d 615 (Fla.Dist.App.2005). Other courts have not found Shiver persuasive: all but one of the other cases listed here were decided after Shiver.

Courts upholding admission of these records have emphasized that these records are routinely generated to ensure accurate testing on an ongoing basis, not to establish the facts in a specific case. E.g., Marshall, 114 Hawai`i at 401, 163 P.3d 199; Bohsancurt, 212 Ariz. at 186-87, 129 P.3d 471. And although they "are prepared in anticipation of criminal litigation in a general sense, . . . they are not prepared in anticipation of litigation in a particular case." Abyo, 166 P.3d at 60. These records—in purpose and in generation—are different from ones recording the specific alcohol content of the defendant's breath.

In support of his position, Dukes cited State v. Caulfield, 722 N.W.2d 304 (Minn. 2006), in which the Minnesota Supreme Court found that a lab test report identifying a substance as cocaine was testimonial and thus subject to Crawford. We recently agreed in Laturner. But the drug-test results in Caulfield and Laturner are equivalent to Dukes' own breath-test result, not to machine certification and calibration records. Those certification and calibration records are different in purpose and in generation from the record of Dukes' specific test result.

Other courts that have approved the admissibility of this evidence have emphasized that the calibration documents were mandated by administrative rules and were created whether the machine was used for a specific test or not. E.g., Abyo, 166 P.3d at 59-60; Bohsancurt, 212 Ariz. at 187, 129 P.3d 471. The same is true here. K.S.A. 8-1020 provides that in administrative proceedings, breath tests may be challenged for failure to substantially comply with procedures set out by the Kansas Department of Health and Environment (KDHE), and K.S.A. 65-1,107 authorizes KDHE regulations for testing human breath for law-enforcement purposes. KDHE regulations provide the required procedures for certification of the machine, its operators, and the test solution used to check its calibration. See K.A.R. 28-32-1. And the calibration solution here was certified by a KDHE employee, not a law-enforcement officer.

The Crawford Court noted that business records are not necessarily testimonial. 541 U.S. at 56, 124 S.Ct. 1354. We agree...