Are Calibration and Simulator Solution Certificates Used in Verifying the Accuracy of the Breathalyzer Test Testimonial?

In Melendez-Diaz v Massachusetts (129 S.Ct. 2527 [2009]), the Supreme Court held that it violate the right of confrontation for a prosecutor to submit a chemical drug test report without the testimony of a person who performed the test subject to confrontation. Thus, the admission at trial of three sworn “certificates of analysis” or affidavits showing the results of the forensic analysis performed on samples of the seized white powder was reversible error where the analyst did not testify. The Court rejected the ideas that the right to confrontation only applied when the evidence accused someone of a crime or didn’t apply to scientific tests, noting that crime labs have provided unreliable evidence in the past, and said that confrontation would help find the truth.

This year, in Bullcoming v New Mexico (564 U.S. __,131 S.Ct. 2705 [2011]), the Court held that under the confrontation clause “the accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.”

In People v Pealer (2011 NY Slip Op 08397 [4th Dept 11/18/11]) considered whether these holding apply to the calibration and simulator solution certificates used in verifying the accuracy of the breathalyzer test. The problems with the reliability and accuracy of such certificates was revealed in a 1987 Pennsylvania audit report (http://www.ridl.us/phpBB2/viewtopic.php?f=1&t=294). The Fourth Department rejected the contention that these documents were testimonial subject to the right to confrontation, holding that

the statements contained in the breath test documents are not accusatory in the sense that they do not establish an element of the crimes. Indeed, standing alone, the documents shed no light on defendant's guilt or innocence. The only relevant fact established by the documents is that the breath test instrument was functioning properly. The functionality of the machine, however, neither directly establishes an element of the crimes charged nor inculpates any particular individual. Thus, the government employees who prepared the records were “not defendant's accuser[s]' in any but the most attenuated sense”, and the breath test documents were properly admitted in evidence over defendant's objection based on the Confrontation Clause (internal citations omitted).

It should be noted that some local courts have held otherwise (People v Carreira, 27 Misc3d [Watertown City Ct 2010]; People v. Heyanka, 25 Misc3d 978 [Dist Ct Suffolk Co 2009]).