Supreme Judicial Court (May 24, 2011)

Annual certification records for a breath test instrument are admissible in evidence as business records pursuant to G.L. c. 233, § 78, and do not require live witness testimony from the chemist who performed the certification testing on the instrument.

The defendant was charged with operating under the influence of alcohol. During the booking procedure, she consented to take a breath test resulting in a .10 blood alcohol content. At trial, the Commonwealth introduced the Implied Consent Report Form containing the certification dates for the instrument used to administer the defendant's test. The Commonwealth also introduced Office of Alcohol Testing ("OAT") documents detailing the results of the diagnostic testing performed by the OAT chemist as part of the annual certification process. The defendant appealed his conviction arguing the Commonwealth's introduction of certification records without live witness testimony from the chemist who did the certification testing violated her Sixth Amendment confrontation clause rights. The Supreme Judicial Court transferred the case on its own motion.

In order to determine whether an out-of-court statement is admissible in a criminal trial a two part inquiry must be made to determine: 1) whether the statement is admissible under the rules of evidence; and 2) whether it satisfies the confrontation clause of the Sixth Amendment.

Hearsay Exception:
In general, out-of-court statements offered to establish the truth of the matter asserted are inadmissible at trial under the rule against hearsay. However, hearsay statements contained in official business records are admissible if the entry, writing, or record (1) was made in good faith (2) in the regular course of business (3) before the beginning of the civil or criminal proceeding in which it is offered, and (4) it was the regular course of such business to make such memorandum at the time of such act, transaction, occurrence, or event or within reasonable time thereafter. See G.L. c. 233, § 78.

The certified records in this case were generated from a computerized database maintained by OAT. The records were made and maintained by public officials acting under a statutory duty to comply with a regulatory certification program that charges them with producing the records at issue. G.L. c. 90, § 24K, 501 Code Mass. Regs. §§ 2.29, 2.38-2.40. The documents record the results of routine scientific measurements. The records were made two months prior to the defendant's arrest. Based on this evidence, the SJC found that "[t]his is sufficient to establish not only that the records were made in good faith, but that OAT, as an office, generates such records in the regular course of business and at the time of certification."

The Confrontation Clause:
The confrontation clause of the Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The confrontation clause guarantees a defendant the opportunity to confront any person whose testimonial statements are introduced against him. Crawford v. Washington, 541 U.S. 36 (2004). "Business and public records are generally admissible absent confrontation . . . because - having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial - they are not testimonial." Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). G.L. c. 90, §24K requires the OAT to establish a statewide certification program and 501 CMR 2.01 lays out the purpose of the regulations that control the instrument certification process.

Section 24K
Chemical analysis of the breath of a person charged with a violation of this chapter shall not be considered valid under the provisions of this chapter, unless such analysis has been performed by a certified operator, using infrared breath-testing devices according to methods approved by the secretary of public safety. The secretary of public safety shall promulgate rules and regulations regarding satisfactory methods, techniques and criteria for the conduct of such tests, and shall establish a statewide training and certification program for all operators of such devices and a periodic certification program for such breath testing devices; provided, however, that the secretary may terminate or revoke such certification at his discretion.

501 CMR 2.01: Purpose
The purpose of 501 CMR 2.00 is to establish rules and regulations for the training and certification of breath testing operators, instructors and devices in accordance with G.L. c. 90, § 24K. These regulations are intended to be consistent with policies and procedures that may be in force in a police department or agency exercising police powers in Massachusetts. In the event of an inconsistency, however, 501 CMR 2.00 shall control.

The primary purpose of OAT certification is to assure the accuracy and standardization of all breathalyzer testing equipment across the Commonwealth. "In comparison to a chemist who authors certificates of drug analysis, a technician certifying a breathalyzer machine has no particular prosecutorial use in mind." Consequently, the SJC concluded that the OAT certification records are nontestimonial, and their admission without the live testimony of the chemist who prepared them did not violate the confrontation clause of the Sixth Amendment.

Note: The opinion contains good language about the extent of the testimony an officer in charge can provide regarding the functionality of the instrument and the fifteen minute observation period.