DUI Appeal - Mississippi Court Allows Inspector Records Despite Lack of Confrontation

This case comes to DAD thanks to the watchful eyes of NCDD member Lance Mixon. In Matthies v. State of Mississippi, --- So.3d ----, 2011 WL 2120060 (Miss.App.), the defendant argued on appeal that his confrontation rights were violated when the person who 'calibrated' the machine did not testify at trial. The calibration certificates were filled out on September 1, 2008, and October 2, 2008, and certify that the Intoxilyzer 8000 machine administered to Matthies was in “working condition” and met “acceptable standards of accuracy.”

The Mississippi Appeals Court first reviewed cases from other jurisdictions involving similar issues:

"Since the Melendez–Diaz Court expressly declined to answer the question before us, we look to other jurisdictions. Courts having occasion to consider intoxilyzer inspection, maintenance, or calibration records post- Melendez-Diaz have almost uniformly agreed that such records are nontestimonial in nature. See United States v. Forstell, 656 F.Supp.2d 578, 580–82 (E.D.Va.2009); State v. Linder, 2010 WL 3760744, *2 (Ariz . Ct.App.2010); Jacobson v. State, 703 S.E.2d 376, 379 (Ga.Ct.App.2010); People v. Jacobs, 939 N.E.2d 64, 71–72 (Ill.App.Ct.2010); Ramirez v. State, 928 N.E.2d 214, 219–20 (Ind .Ct.App.2010); State v. Johnson, 233 P.3d 290, 299 (Kan.Ct.App.2010); State v. Bergin, 217 P.3d 1087, 1089 (Or.Ct.App.2009); Settlemire v. State, 323 S.W.3d 520, 521–22 (Tex.Ct.App.2010); Hamilton v. State, 2010 WL 4260608, * 3 (Alaska Ct.App.2010) (unreported decision). But see United States v. Gorder, 726 F.Supp.2d 1307, 1314 (D.Utah 2010) (finding “Intoxilyzer 8000 Operational Checklist” testimonial).

The Mississippi court found the language in the Ramirez decision (cited above) most persuasive. "In Ramirez, the Indiana Court of Appeals confronted similar calibration certificates and found:

"Melendez–Diaz does not hold that routine calibration records are always nontestimonial. But at a minimum it leaves the question unresolved and demands the same type of scrutiny that we have undertaken since Crawford. ... The certificates do not comprise ex parte in-court testimony or its functional equivalent. They are not formalized testimonial materials like sworn affidavits. Moreover, while the certificates contemplate use in criminal trials, they are completed in advance of any specific alleged drunk-driving incident and breath test administration and are not created for the prosecution of any particular defendant." Ramirez, 928 N.E.2d at 219.

The Matthies court concluded:

"The certificates at issue here do nothing more than verify the accuracy of the equipment. Though the Intoxilyzer was calibrated for use in criminal prosecutions, the certificates were not specifically prepared with an eye on prosecuting Matthies. Therefore, the calibration records in this case are different from the lab analysts' certificates at issue in Melendez–Diaz, which were prepared after the drug seizure to establish at the defendant's trial that the substance obtained from him was cocaine."

Editor's Note: What bothers this editor the most from these decisions is the claim that 'all the inspector is doing is finding the machines accurate'. However, the machines themselves are designed to do the same thing that was found problematic in Melendez-Diaz: determine the identity of a particular substance and then subsequently weigh it. Whereas Melendez identified the substance in the bag as cocaine, in this case the machine identified the substance in the lungs as alcohol. An inspector who 'calibrates' a device is performing some of the same activities that are performed by a GC tech. Finally, the Intoxilyzer actually 'weighs' the amount of alcohol as well, which is a key component to the innocence or guilt of the driver. It seems to me that these courts are being disingenuous in their so-called distinctions between drug gc-ms cases and dui breath-test cases.


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