DUI law - Confrontation Clause Doesnt Apply to Calibration Breath Records

In Commonwealth v. Dyarman, --- A.3d ----, 2011 WL 5560176 (Pa.Super.), 2011 PA Super 245 the court was asked to decide whether the calibration records of an Intoxilyzer 5000en violated the Confrontation Clause. They ruled that the logs did not so violate.

"In this matter, unlike in Barton–Martin, the individual who actually performed Appellant's BAC analysis (Officer Gsell) testified as to the accuracy of that test and as to the specific results received with regard to Appellant. Nevertheless, Appellant claims that admission of the calibration logs for the device used to determine Appellant's BAC, without the testimony of the person who performed the actual calibration, violated her right under the confrontation clause. Appellant's Brief at 10–15. Appellant argues that the calibration logs are testimonial in nature, such that application of Melendez–Diaz and Barton–Martin should prohibit their admission through the business records exception of the hearsay rule. Id. at 13. We disagree."

"Here, the calibration logs were admitted into evidence to establish the chain of custody and accuracy of the device used to test Appellant's BAC; they were not created in anticipation of Appellant's particular litigation, or used to prove an element of a crime for which Appellant was charged. Therefore, although relevant evidence, the logs were not “testimonial” for purposes of the protections afforded by the confrontation clause, as contemplated by Crawford, Melendez–Diaz, and Barton–Martin."

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