Tamara Johnson 1-25 Darden
(Judge Rebecca Pierson-Treacy, Marion Superior 19, affd.)
- The BAC 3 hour (IC 9-30-6-2(c)) relation back statute under IC 9-30-6-15(b) is permissive and U.S. constitutional.
- Admission of DataMaster certification does not violate right to confrontation, because it is not testimonial.
FACTS: Typical OWI investigation. In the early morning hours an SUV was speeding 10 miles over the posted limit on a wet road. The driver didn’t respond to lights, but swerved over to a stop after the siren was activated. The driver exhibited classic signs of intoxication including red watery eyes, an odor of alcohol, and fumbling thru her wallet for her license. She admitted she had a few glasses of wine at a restaurant six blocks away. She failed two of three field sobriety tests, passing the 9 step walk and turn, but not the horizontal gaze nystagmus or one leg stand. 39 minutes after the stop, after the implied consent warning, the driver gave a BAC DataMaster result of .09 grams of alcohol per 210 liters of breath. Over objection the jury received as foundational material a certification for the DataMaster used to obtain the BAC result, and the jury was instructed on the relation back statute. The jury found the defendant guilty of OWI (endangerment) as a class A misdemeanor and BAC of at least .08 but less than .15, a class C misdemeanor.
DISCUSSION:
RELATION BACK STATUTE U.S.CONSTITUTIONAL:
The defense used a scientific journal article to attack the validity of the relation back statute. A.W. Jones, A. Norbertg, & R.G. Hahn, Concentration-Time Profiles of Ethanol in Arterial and Venous Blood and End-Exoired Breath During and After Intravenous Infusion, 42 J. Forensic Sci. 1088 (1997). Looking to the alcohol absorption rate in relation to the time frame of this test the defense argued the defendant could have been less than .08 when she was driving. Citing Morissette v. U.S., 342 U.S. 246 (1952) the defense contended the state failed to establish the facts necessary to show a strong logical nexus between the alcohol concentration at testing and the presumed alcohol concentration at the time of operation. The appellate court disagreed, and held the trial court properly relied on the relation back statute which is permissive (despite underlining shall in the statute – a mandatory- looking word). The rebuttable presumption saves the statute, somehow establishing it as permissive.
The appellate court said driving is (sort of) a privilege. The legislature has the exclusive prerogative to establish the permissive presumption set out in the statute. And even though the appellate court said it refused to reweigh the facts, it made a common sense calculation and found that at least 45 minutes passed from the defendant’s last drink, to testing time. Thus, the permissive presumption was not rebutted in this case. (Somehow the un-re-weighed facts weighed against the under 30 minute argument the defense was making).
DATAMASTER CERTIFICATION NO CRAWFORD VIOLATION:
The defense argued the certification language that “the instrument was in good operating condition, satisfying the accuracy requirement set out by State Department of Toxicology,” was beyond the scope of IC 9-30-6-5(b) and converted the certification into a testimonial type document. “That’s an extraneous statement that bolsters the machine and… is an out of court statement that goes beyond saying we certif(y) this. This argument also failed. Again, legislative prerogative won the day. Looking under subsection (c), that the certificate is prima facie evidence the equipment was inspected, approved, and in proper working condition, the appellate court saw no problem with the certification language. Citing Napier I 820 N.E.2d 144, Napier II 827 N.E.2d 565, and Jarrell v State, 852 N.E.2d 1022 the court said the certification was not testimonial. So confrontation rights were not implicated, when it was admitted into evidence.