Washington v. District of Columbia

• Decision Date: 15 March 1988
• Docket Number: No. 86-1638.,86-1638.
• Citation: 538 A.2d 1151
• Parties: Charles W. WASHINGTON, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

Page 1151

538 A.2d 1151

Charles W. WASHINGTON, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 86-1638.

District of Columbia Court of Appeals.

Argued October 14, 1987.

Decided March 15, 1988.

Sidney R. Bixler, Washington, D.C., appointed by the court, for appellant.

Mary L. Wilson, Asst. Corp. Counsel, with whom Frederick D. Cook, Jr., Acting Corp. Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corp. Counsel, Washington, were on the brief, for appellee.

Before NEWMAN and BELSON, Associate Judges, and GALLAGHER, Senior Judge.

BELSON, Associate Judge:

In this case of first impression, appellant challenges his conviction for driving while intoxicated. D.C. Code § 40-716(b)(1) (1986). This court has not previously had occasion to address the so-called "per se" provision of § 40-716(b)(1), which classifies as "intoxicated" a person who drives a vehicle while his or her blood contains at least 10 percent, by weight, of alcohol. Appellant raises two issues on appeal. First, he contends that the trial court deprived him of his Sixth Amendment right to confrontation by denying his request that the government produce at trial the technician who tested him to determine his blood alcohol content. Second, he maintains that the trial court refused to consider evidence that contradicted the test results, thereby denying him due process of law. We find no error, and thus affirm.

I

Appellant was arrested on May 12, 1986, and charged by information with driving while intoxicated, in that he "operate[d] . . . a vehicle while his blood contained at least 10 percent, by weight, of alcohol . . ." in violation of D.C.Code § 40-716(b)(1). That statute provides in pertinent part that

[n]o individual shall, when the individual's blood contains .10 percent or more, by weight, of alcohol (or when an equivalent quantity of alcohol is contained in at least 2,000 cubic centimeters of his breath) . . . operate or be in physical control of any vehicle in the District.

The two breath tests administered to appellant indicated that his blood alcohol level at the time he was driving exceeded .10 percent.

On September 9, 1986, thirteen days before trial, appellant's attorney served on the Corporation Counsel a "Motion That District's Breathalyzer Expert Be Avai[la]ble For Trial." This motion, made pursuant to D.C.Code § 40-717.2 (1986),¹ cited no reason for the request. In fact, it did not ask specifically that the technician who administered the breath test be the one to testify.

The case came on for nonjury trial on September 22, 1986. Although the District of Columbia did not respond in writing to appellant's motion, it did oppose the motion in open court prior to the commencement of trial. At that juncture, for the first time, appellant's attorney stated that appellant had requested the presence of the technician because he wished to challenge the accuracy of the machine's calibration. Appellant argued that he intended to prove through the technician's testimony that the readings he was given could not have been accurate because appellant had not consumed enough alcohol to achieve the scores that were registered, and that the difference between his two test results was so great that it demonstrated that the machine had not been working properly. The court denied the motion on the ground that the technician, who merely operated the machine, was unqualified to interpret the test results and to testify about oxidation of alcohol in the blood stream.²

At trial, the government presented one witness, Officer Donald William Bryant of the Metropolitan Police Department, the arresting officer. Officer Bryant testified that in the early morning hours of May 12, 1986, he stopped appellant, who was driving in the 2700 block of Rhode Island Avenue, N.E., because appellant's car was "straddling the lanes." After pulling appellant over, Officer Bryant noticed that appellant had a faint odor of alcohol on his breath. The officer asked appellant to perform two field sobriety tests, which, in his opinion, appellant performed poorly. Officer Bryant then arrested appellant and transported him to the Traffic Division for a blood alcohol test.

At the Traffic Division, appellant was given two breath tests on the Intoxilyzer 5000 to determine his blood alcohol content. The test results were introduced into evidence through the Chemical Test Certification Form and the Implied Consent Form, both of which were filled out and signed at the time appellant was tested. Officer Bryant, who had witnessed the tests and the signing of the forms, authenticated them. These forms showed that in appellant's initial test, administered approximately one hour and fifteen minutes after he was stopped, appellant received a blood alcohol reading of 0.13 percent. Thirty-four minutes later, in a second test, appellant registered a reading of 0.11 percent. The Chemical Test Certification Form indicated that the particular machine used to test appellant had been certified for accuracy twenty-five days earlier and had undergone a "simulator test" within the preceding twenty-four hours.

After Officer Bryant's testimony, the government rested. Appellant, the sole witness in his defense, testified that he had consumed only two drinks that night, a beer and a rum and coke, three to four hours before he was stopped. Appellant explained that if his car was "straddling the lanes," as Officer Bryant had testified, the problem was caused by a faulty hub bearing on the right front wheel, not by his consumption of alcohol.

The court, noting that it was undisputed that appellant was driving in the District at the time of his arrest, and that the test equipment used to test appellant's breath had been certified for accuracy shortly before the tests were given, found appellant guilty of driving while his blood alcohol content was in excess of .10 percent,³ in violation of the so-called "per se" provision of D.C.Code § 40-716(b)(1).

II

We first address appellant's argument that the trial court interpreted § 40-717.2 too narrowly, thereby depriving him of his Sixth Amendment right to confront and cross-examine the technician. Appellant points out that § 40-717.2 is a notice provision, requiring that a defendant who wishes to cross-examine the technician notify the District of his desire to have the technician present and state the reasons for his request. He contends that nothing in the statute requires or even allows the trial court to inquire into the sufficiency of the reason stated. Thus, he argues, if the request is made and is accompanied by any stated reason, the court must compel the presence of the technician.

Section 40-717.2 was enacted as part of the Anti-Drunk Driving Act of 1982, D.C.Law 4-145. Prior to the enactment of the statute, technicians were required to be available for every drunk driving trial, even though they seldom were called to testify. This particular section was adopted on the recommendation of the Metropolitan Police Department to obviate the need for the technician's presence at trial unless the technician was going to be called as a witness. Council of the District of Columbia, Committee Report on Bill 4-389, the "Anti-Drunk Driving Act of 1982," at 1, 4 (May 5, 1982) (hereinafter Committee Report). In lieu of the technician's presence or testimony, the statute allows evidence of a blood alcohol test to be introduced at trial through an official copy of the test results, provided the technician has certified that the test was conducted properly and that the equipment used was tested and determined to be accurate within the preceding three months.⁴

Neither the Committee Report nor the statutory language itself addresses the particular circumstances under which a trial court should grant a defendant's request for the presence of the technician. We note that the language of § 40-717.2 requires in general terms a statement of "the reasons why the accuracy of the test result is in issue." Thus, more than a mere request for the technician is necessary. A defendant must affirmatively state why he challenges the test result. The statement of reasons for requesting the technician's testimony allows the parties and the court to focus the issues for trial and, thus, conserves judicial and police resources, a concern of the Council in drafting the overall legislation. See Committee Report, supra, at 4, 9; see also id., Attachment B, testimony of Captain Layfield on Bill 4-389 at 4, 9. The statement of reasons also enables the court to determine whether the technician is competent to testify on the matters at issue.⁵ Such a requirement does not pose an unreasonable burden on a defendant. Moreover, as the District of Columbia points out in its brief, pretrial discovery affords a defendant a means to inspect the testing equipment and to review the results of other tests taken by that machine.

Although appellant argues that the trial court should enforce any request that meets the facial requirements of the statute, his own written notice was deficient in several ways. Not only was it untimely, because it was served only thirteen days before trial, rather than the fifteen days required by the statute, but it also failed to give any reasons for requesting the testimony of the technician. Furthermore, it asked for a "breathalyzer expert" rather than the technician specified in the statute. Under these circumstances, appellant had no right to expect the presence of the technician when trial commenced.

Nevertheless, the trial court thoroughly questioned appellant about his reasons for requesting the presence of the technician before denying the request on the ground that a technician was not competent to testify on the issue raised. The trial court did not err in so ruling.⁶ A trial court has the duty to consider whether a witness is competent to testify and, if not, to disallow the testimony. See, e.g., Hinnant v. United States, 520 A.2d...