State v. Huggins, s. 6535

Decision Date17 September 1982
Docket Number6595,Nos. 6535,s. 6535
Citation659 P.2d 613
PartiesSTATE of Alaska, Petitioner and Cross-Respondent, v. Kenneth E. HUGGINS and Terrence Connors, Respondents and Cross-Petitioners.
CourtAlaska Court of Appeals

Michael McLaughlin, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Wilson L. Condon, Atty. Gen., Juneau, for petitioner and cross-respondent.

Michael P. McConahy, and Paul A. Barrett, Call, Dewitt & Barrett, Fairbanks, for respondents and cross-petitioners.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION

SINGLETON, Judge.

Kenneth E. Huggins and Terrence Connors were charged as a result of separate and unrelated incidents with driving while intoxicated. During their respective trials the state sought to introduce a group of documents that the parties refer to collectively as the "breathalyzer packet," as a foundation for the admission of the results of breathalyzer examinations administered to Huggins and Connor. 1 See AS 28.35.033(d).

During the state's case-in-chief District Court Judge Stephen R. Cline upheld Connors' objection to the admissibility of the breathalyzer packet into evidence. Subsequently, Superior Court Judge Gerald J. Van Hoomissen granted the state's motion for a stay of the proceedings. The state also sought interlocutory review of Judge Cline's ruling before the superior court pursuant to Alaska Rule of Appellate Procedure 610(b)(1). Judge James R. Blair granted the state's petition for review. Judge Cline did not file a written opinion in Connors and the jury has not been dismissed.

Huggins' jury trial also commenced before Judge Cline. Judge Cline also sustained Huggins' objection to admission of the breathalyzer packet. The state requested and was granted a stay of proceedings pending a petition for review. The superior court remanded the case to Judge Cline for reconsideration, and he issued a written opinion setting out his reasons for the suppression order.

The state petitioned separately for hearings before the superior court acting as an intermediate appellate court under Alaska Rule of Appellate Procedure 610(b)(1). Judge Blair issued a memorandum opinion in Huggins granting the state's petition for review and affirming the decision of Judge Cline in excluding the breathalyzer packet. Judge Blair disapproved Judge Cline's holding that the breathalyzer packet was excludable hearsay under Alaska Rule of Evidence 803(8)(b), but affirmed his holding that the documents were excludable as improperly authenticated under Alaska Rule of Evidence 902. The following day Judge Blair issued a memorandum opinion in Connors, which followed his Huggins decision.

The state petitioned for a hearing in this court and the two cases were consolidated. The state sought review of the portion of Judge Blair's order concerning Alaska Rule of Evidence 902. Connors and Huggins filed their response and cross-petition seeking review of Judge Blair's order holding the breathalyzer packet admissible under Alaska Rule of Evidence 803(8). We have granted both the petition for hearing and cross-petition. We stayed Huggins' and Connors' trials pending our decision, and subsequently issued an order affirming in part and reversing in part Judge Blair's decision. We held that the documents contained in the breathalyzer packet, while hearsay, are within the Alaska Rule of Evidence 803(8) public records exception to the hearsay rule and are not rendered individually or collectively inadmissible under Alaska Rule of Evidence 803(8)(b)(i)-(iii). We also held that subject to certain modifications the various documents are self-authenticating under Alaska Rule of Evidence 902(4).

ADMISSIBILITY OF THE BREATHALYZER PACKET UNDER THE PUBLIC

RECORDS EXCEPTION.

We follow Wester v. State, 528 P.2d 1179 (Alaska 1974), decided before adoption of the new evidence rules, and hold that the breathalyzer packet is admissible under Alaska Rule of Evidence 803(8)(a). 2 Wester held that the "ampule certification and breathalyzer calibration need not be the subject of personal testimony and are clearly admissible under the official records exception to the hearsay rule." 3 528 P.2d at 1183.

Huggins and Connors argue that Evidence Rule 803(8) supercedes Wester and that admissibility of the breathalyzer packet is inconsistent with the language of the rule, the policy behind that rule, and the preservation of the appellees' sixth amendment rights to confrontation. We disagree. We find that admission of the breathalyzer packet under Evidence Rule 803(8)(a) is not precluded by the exceptions to the rule provided in Evidence Rule 803(8)(b)(i)-(iii). Those rules must be read in context with Evidence Rule 803(8)(a). Specifically, the references to "factual findings" in the subparagraphs of Evidence Rule 803(8)(b) must be read in light of the language--"factual findings resulting from an investigation made pursuant to authority granted by law"--embodied in Evidence Rule 803(8)(a). Where a state employee investigates a specific case likely to result in litigation and can foresee the part his findings might play in the resolution of that litigation, he may be motivated to alter his findings to influence that result. We believe that factual findings excluded by Rule 803(8)(b)(i)-(iii) are limited to such situations.

Consequently, the calibration of the breathalyzer, 7 AAC 30.050, the certification of ampoules, 7 AAC 30.060, a certification that a given person is legally qualified to calibrate the breathalyzer, 7 AAC 30.070(3), or a certificate that a given laboratory is approved, 7 AAC 30.060(a), (d), do not constitute "factual findings" from a specific investigation, governed by Evidence Rule 803(8)(a). The factual findings included in the records that comprise the breathalyzer packet are compiled in the regular course of business by government officials in advance of any specific case in which the breathalyzer tested will be used. An official would have no motive to misrepresent those facts because the nexus between his findings and a particular result on a particular prosecution is too attenuated. Since the person certifying the machine has no knowledge of a specific case, he has no incentive to misrepresent. See Palmer v. Hoffman, 318 U.S. 109, 110-15, 63 S.Ct. 477, 479-481, 87 L.Ed. 645, 648-51 (1943), aff'g Hoffman v. Palmer, 129 F.2d 976 (2d Cir.1942). An ordinary police accident report is often colored by the officer's judgment and frequently incorporates opinions gathered from second-hand sources who have a stake in pending litigation. The Department of Health and Social Services is the agency charged with the responsibility of promulgating regulations concerning the use of the breathalyzer. While it is a state agency, it has no motive to attempt to affect the outcome in a particular case. The packet itself is merely a record of factual findings recorded in the regular course of business, a record made independently and well in advance of any particular prosecution. Public records that are prepared pursuant to official duty as a regular activity unconnected with litigation are normally reliable and trustworthy. To interrupt public business by requiring the personal testimony of each officer involved in compiling a particular breathalyzer packet would appear to serve no useful purpose, in the absence of some evidence in a specific case that a specific record was inaccurate. See Wester, 528 P.2d at 1181; 5 J. Wigmore, Evidence §§ 1631, 1633, at 617-18, 623-24 (J. Chadbourn rev. 1974). So long as the proffered facts were those recorded within the scope of the official duty of a public servant the evidence is admissible.

Admission of the breathalyzer packet pursuant to Evidence Rule 803(8)(a) does not violate Huggins' and Connors' sixth amendment right to confrontation. 4 The United States Supreme Court has recognized exceptions to the hearsay rule that do not violate the confrontation clause. See Kirby v. United States, 174 U.S. 47, 60, 19 S.Ct. 574, 579, 43 L.Ed. 890, 896 (1899); Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895) (can permit testimony of now deceased witness in former trial upon same indictment to be used as evidence in new trial, without violating confrontation clause); See also C. McCormick Law of Evidence § 252, at 606 n. 10, 607 n. 13 (2d ed. 1972) (citing cases in which hearsay held not to violate right of confrontation).

We hold that the breathalyzer packet is admissible, but Huggins and Connors were not denied an opportunity to substantively challenge it. See also Keel v. State, 609 P.2d 555, 557 (Alaska 1980) (holding that breathalyzer test results are assailable after being admitted into evidence; statute only creates presumption of test's validity); Cooley v. Municipality of Anchorage, 649 P.2d 251, 254-55 n. 8 (Alaska App., 1982) (ordinance allows prosecution to introduce breathalyzer test results, but results still may be attacked as invalid). A person charged with driving while intoxicated may call witnesses to testify to inaccuracies in the testing procedure, and may challenge the factual findings themselves after an independent analysis of the breath sample or some other method of verification. 5 Further, "[e]ven after admission of the breathalyzer test results, the burden is still upon the municipality to convince the jury that the breathalyzer test is accurate and that the defendant's blood or breath alcohol was above the prohibited level at the time of driving." Cooley, 649 P.2d at 255. Huggins and Connors were not denied an opportunity to substantively confront the evidence presented against them.

ADMISSIBILITY OF THE BREATHALYZER PACKET AS SELF-AUTHENTICATING

The state challenges Judge Blair's holding that the breathalyzer packet is inadmissible on the grounds that the documents are not self-authenticating under Evidence Rule 902(1)-(2) or (4). 6 We agree that the documents in the breathalyzer packet are not self-authenticating...

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