Criminal: COMMONWEALTH V. WALTHER (SCOKY; 4/20/2006)

CRIMINAL – DUI; Intoxilyzer
DATE:  4/20/2006

The issue certified: Can a certified copy of a breath-alcohol machine’s maintenance and test records be admitted into evidence to show compliance with 500 KAR 8:020 § 2(1) without in-court testimony by the breath-alcohol technician who performed the maintenance and tests?SC held in the affirmative in both Commonwealth v. Wirth, 936 S.W.2d 78, 82-83 (Ky. 1996), and Roberts v. Commonwealth, 122 S .W.3d 524, 528-29 (Ky. 2003). TC, however, held in this case that Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L. Ed .2d 177 (2004) does in fact supersede the prior decisions of the Kentucky Supreme Court in Wirth and its progeny on this issue. SC disagreed.In Crawford v. Washington, the United States Supreme Court held that the Confrontation Clause of the Sixth Amendment to the United States Constitution does not permit the use of court-created hearsay exceptions or other tests of "reliability," e.g_, the "particularized guarantees of trustworthiness" articulated in Ohio v. Roberts , 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980), to admit testimonial hearsay statements against a defendant at a criminal trial unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. Crawford, 541 U.S. at 68, 124 S.Ct. at 1374. The Commonwealth does not assert either that Blankenship was unavailable for trial or that Respondent had a prior opportunity to cross-examine him.Thus, the only issue is whether the notations Blankenship made in the documents reflecting his maintenance and the results of his tests on the Intoxilyzer machine were "testimonial ."  Every jurisdiction but one that has considered this issue since Crawford has concluded that maintenance and performance test records of breath-analysis instruments are not testimonial, thus their admissibility is not governed by Crawford.  We conclude that the notations contained in Blankenship’s reports were not testimonial, thus their admission into evidence was neither governed nor affected by the holding in Crawford.

Digest by Scott Byrd.

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