In 2009 the United States Supreme Court ruled in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), that a certification by a Mass. Department of Public Health Chemist regarding the nature and weight of cocaine was a testimonial statement, and thus the admission of the drug certification in place of live testimony by the chemist who tested the drugs violated the defendant’s Sixth Amendment right. This result is based on the principle that a defendant’s right to confront his accusers is guaranteed by the Sixth Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights.
Allowing “ceritifications” which cannot be cross-examined to replace live witnesses has rightfully been declared unconstitutional by the highest court in the land. This landmark decision may have a significant impact on Massachusetts drunk driving cases.
In Massachusetts DUI cases, in order for breath test evidence to be admissible, the prosecution must prove that the breathalyzer was properly calibrated and maintained. The same requirements hold true for the breathalyzer simulator solution, which is used during ever breath test to confirm the accuracy of the breathalyzer. Whether certifications attesting to the accuracy of the breathalyzer and simulator solution can be admitted without a chemist’s live testimony, is currently unanswered. In dicta, in the Melendez-Diaz decision, Justice Scalia stated that “documents prepared in the regular course of equipment maintenance may well qualify as non-testimonial records.”In Commonwealth v. Babb, 77 Mass. App. Ct. 1116 (2010), although the DUI defendant made no such objection at trial, he claimed on appeal that the admission of breathalyzer records from the Office of Alcohol Testing violated his rights. Since the issue was not raised in a timely manner at the drunk driving trial and since the defendant’s DUI lawyer failed to specifically identify which documents he claimed were admitted in violation of the Confrontation Clause, the Massachusetts Appeals Court did not consider the Melendez-Diaz argument.
There has been no reported appellate level decision, to date, regarding the application of Melendez-Diaz to breathalyzer-related certifications. However, the Appeals Court has correctly held that Melendez-Diaz does not apply to public records of prior convictions and certain hospital records which contain blood alcohol concentrations. When warranted, Massachusetts DUI attorney should make Melendez-Diaz arguments at trial to preserve their clients’ rights.
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