2008-05-23 Breath Test Administrator Affidavit is Testimonial Under Crawford v Washington - One Step Closer to the Data

This May 1, 2008 decision in State of Florida v Bruce Belvin, No. SC06-593 (FL 2008) appears to bring the issue of Crawford v Washington's application of 6th Amendment right-of-confrontation closer a holding that the computer information itself is testimonial in nature, and equally deserving of 6th Amendment right-to-confront protections.

In Belvin, the Florida Supreme Court overturned the Florida 4th District Court of Appeals decision holding that a breath test administrator's affidavit as to the procedures and observations was *not* testimonial hearsay. In that case, and over defense objections, the affidavit of the breath test administrator was admitted without requiring the administrator herself to testify. The Florida 4th DCA certified that issue to the Florida Supreme Court after making that ruling.

The Florida Supreme Court first discusses the history of the business records exception to the hearsay rule, and analyzes earlier U.S. Supreme Court precedent from Ohio v Roberts, 448 U.S. 56, 66 (1980):

"In Roberts the Court said that a hearsay statement could be admitted in a criminal trial without violating the right of confrontation if it was shown that the declarant was unavailable and the out-of-court statement bore adequate indicia of reliability."

Strange as it may seem, it appears that the Florida Supreme Court interprets the Crawford decision as doing away with "indicia of trustworthiness" test because...the test itself was unreliable, and more deserving of 6th Amendment right-to-confront protection. The Belvin Court then discusses that Crawford v Washington 541 US 36 (2004) discards the "indicia of reliability" test and replaces it with 6th Amendment right-of-confrontation protection:

"The standard for determining whether the admission of a hearsay statement against a criminal defendant violates the right of confrontation was modified by the Supreme Court in Crawford v. Washington. Before Crawford, the Confrontation Clause issue was controlled by Ohio v. Roberts, 448 U.S. 56, 66 (1980). In Roberts the Court said that a hearsay statement could be admitted in a criminal trial without violating the right of confrontation if it was shown that the declarant was unavailable and the out-of-court statement bore adequate indicia of reliability. "

Moreover, the Court notes:

"This test focused on the reliability of the statement. As explained in Roberts, a statement had adequate indicia of reliability if it either fell within a firmly rooted hearsay exception or if it bore ―particularized guarantees of trustworthiness. Id. However, in Crawford, the Supreme Court dispensed with the Roberts reliability analysis for testimonial hearsay and held the admission of a hearsay statement made by a declarant who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial, (2) the declarant is unavailable, and (3) the defendant lacked a prior opportunity for cross-examination of the declarant. The Court emphasized that if ―testimonial evidence is at issue, ―the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. Crawford, 541 U.S. at 68. ―Only [testimonial statements] cause the declarant to be a ‗witness‘ within the meaning of the Confrontation Clause. Davis v. Washington, 547 U.S. 813, 821 (2006). ―It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause. Id.

Thus, we must initially determine whether the breath test affidavit at issue in the instant case contains testimonial statements. While Crawford did not establish a precise definition for the term ―testimonial, the Supreme Court provided some guidance, holding that, at a minimum, statements are testimonial if the declarant made them at a ―preliminary hearing, before a grand jury, or at a former trial; and [in] police interrogations. Crawford, 541 U.S. at 68."

The Belvin Court then acknowledges that the affidavit is a "witness" and that the technician who created the affidavit did so to provide a "critical element" in the DUI criminal prosecution.

"Applying the rationales of Davis and Crawford to the instant case, we conclude that the breath test affidavit is testimonial. First, the affidavit was ―acting as a witness‖against the accused. Davis, 547 U.S. at 828; see Crawford, 541 U.S. at 51. The technician who created the breath test affidavit did so to prove a critical element in Belvin's DUI criminal prosecution. In other words, the breath test affidavit was created ―to establish or prove past events potentially relevant to later criminal prosecution. Davis, 547 U.S. at 822; see Thomas v. United States, 914 A.2d 1, 12-13 (D.C. Cir. 2006), cert. denied, 128 S. Ct. 241 (2007). Second, the affidavit was not created during an ongoing emergency or contemporaneously with the crime. Instead, it was created ―well after the criminal events had transpired."

The issue of contemporaneity is also discussed in the above excerpt, and acknowledgment again made that the affidavit in question was not contemporaneously created.

Using the Belvin decision rationale, we are perhaps one step closer to showing that it is the Breath-a-lyzer data itself, acting in concert with the computer environment generating that data, that establishes or proves the element of a DUI. The hint that an argument to that effect might be made:

"More precisely, the sole purpose of a breath test affidavit is to authenticate the results of the test for use at trial. See § 316.1934(5), Fla. Stat. (2007). "

Perhaps, if the argument is sufficiently well crafted, the computer information itself, rather than the affidavit of a technician interpreting that computer information, will itself be held sufficiently testimonial to invoke Crawford's 6th Amendment protection.



Link to the decision: http://www.floridasupremecourt.org/decisions/2008/sc06-593.pdf