MARK M. MURATORE, Plaintiff-Appellee,
v.
STATE OF
OKLAHOMA, ex rel., DEPARTMENT OF PUBLIC SAFETY, Defendant-Appellant.
Facts and Procedural History
¶1 On April 21, 2012, at approximately 11:30 p.m., Plaintiff-Appellee Mark
Muratore was arrested by Officer Tim Harwell of the Edmond Police Department for
operation of a motor vehicle while under the influence of an intoxicating
substance. The arresting officer read him the Oklahoma Implied Consent advisory
and transported Muratore to the booking area of the Edmond city jail where he
voluntarily submitted to a breathalyzer test. The breathalyzer test was
administered using the Intoxilyzer 8000, a device approved by the Board of Tests
for Alcohol and Drug Influence. At 11:51 p.m. the officer began the
fifteen-minute deprivation period.1 Once the fifteen-minute deprivation period was over,
the officer took the first breath sample at 12:08 a.m. on April 22, 2012, with a
test result of .11g/210L.2 The second sample was taken at 12:11 a.m. with a
test result of .11g/210L.3 Using the Officers' Affidavit and Notice of
Revocation/Disqualification form provided by the Department of Public Safety,
the officer prepared and served the Affidavit revoking Mr. Muratore's driver's
license. On April 23, 2012, Mr. Muratore requested an administrative hearing
with DPS concerning the revocation of his driver's license. An administrative
hearing was held on November 7, 2012, and the hearing officer sustained the
revocation. Mr. Muratore appealed to the District Court of Oklahoma County.
¶2 At trial, the parties stipulated to the following facts: 1) the officer
had reasonable grounds to stop Mr. Muratore; 2) Mr. Muratore was operating a
motor vehicle on the roadways of Oklahoma; 3) the officer arrested Mr. Muratore;
4) the officer read the implied consent advisory to Mr. Muratore; and 5) Mr.
Muratore agreed to take the breathalyzer test. The only witness, Officer
Harwell, testified that although he was trained by the Board of Tests to operate
the Intoxilyzer 8000 and his permit for administering the test was current at
the time of the arrest, the affidavit he signed contained several errors,
including the date of arrest,4 the date the affidavit was served, and the date the
officer signed the affidavit.5
¶3 The trial court admitted a number of exhibits at trial,6 including the arresting
officer's affidavit, but refused to admit the manufacturer's Certificate of
Calibration for the Intoxilyzer 8000, serial number 80-003810, dated March 26,
2009, and the ILMO Specialty Gases Certificate of Analysis for the gas canister,
lot number 03112080AI, dated February 10, 2012. The trial court found both
documents were hearsay and did not fall under the public records exception to
the hearsay doctrine found in 12 O.S.
2011 § 2803(8) because they were not created by the Board of Tests. After
hearing argument from both sides, the trial court also found the Board of Tests
had no rules in place governing maintenance procedures for the Intoxilyzer 8000.
The trial court reversed the revocation of Mr. Muratore's driver's license.
¶4 DPS appealed, and COCA reversed, disagreeing with the trial court's
interpretation of the facts:
We here note that, in support of his argument to affirm, Muratore argues
the breathalyzer was obviously malfunctioning, and the trial court so
properly determined, given the discrepancy between the date of arrest
entered by the officer ("4/22/2012) and the "date of test" entered
automatically by the breath testing device ("04/21/2012"). However, from
our examination of the Officer's Affidavit and Notice of Revocation, and
considering the admitted date of the arrest on April 21, and the
beginning of the deprivation period just before midnight on April 21,
it seems more likely the device recorded the correct time (11:53
p.m.) when the deprivation period began on April 21, 2012, as
the correct starting "date of test" ("04/21/2012"), and some fourteen
minutes later, at "00:07" (12:07 a.m.) on April 22, 2012,
recorded the result of the first of three "air blank" reference tests before
recording the analysis of Muratore's first breath sample at "00:08" (12:08
a.m.) on April 22, 2012.
Mark Muratore v. State, ex rel. Dep't of Pub. Safety, Case No.
111,586, at 16 n.1 (May 10, 2013) (published) (emphasis added). Mr. Muratore
petitioned this Court for certiorari review, and we granted certiorari on
November 25, 2013.
Standard of Review
¶5 The District Court's review of a driver's license revocation is conducted
de novo, "with the 'trial de novo' being a trial of the entire case anew, both
on the law and on the facts." Appeal of Dungan, 1984 OK 21, ¶ 7, 681 P.2d 750, 752; see
also 47 O.S. 2011 §
6-211(I). To revoke a driver's license based upon a breath test result and a
sworn report from a law enforcement officer, DPS bears the burden in the
district court of proving by a preponderance of the evidence "all facts
necessary to sustain the revocation, including the operation/actual physical
control of a motor vehicle while intoxicated, a valid arrest, proper advice of
rights and consequences, as well as consent to and performance of a valid test
on a properly maintained testing device." Derrick v. State ex rel. Dep't of
Pub. Safety, 2007 OK CIV APP
56, ¶ 11, 164 P.3d 250, 253
(citing 47 O.S. § 754(F)(1); 47 O.S. § 6-211; Smith v. State,
ex rel. Dep't of Pub. Safety, 1984
OK 16, ¶ 6-8, 680 P.2d 365,
368; Westerman v. State, 1974 OK
CR 151, ¶ 11, 525 P.2d 1359,
1361).
¶6 "Revocation appeal proceedings in the district court are exempt from the
provisions of the Oklahoma Pleading and Discovery codes, but they are not exempt
from the Oklahoma Evidence Code." Hedrick v. The Comm'r of the Dep't of Pub.
Safety, 2013 OK 98,
____P.3d____. The trial court's determination to admit or not admit evidence
under one of the hearsay exceptions will not be disturbed absent an abuse of
discretion. Kerr v. Clary, 2001 OK 90, ¶ 15, 37 P.3d 841, 844. In reviewing the
revocation of a driver's license on appeal, this Court will not reverse the
trial court's judgment "if there is any evidence, or any reasonable inference to
be drawn therefrom, which tends to support [the trial court's] findings."
Smith, 1984 OK 16, ¶ 7, 680 P.2d 365, 368. see
also Hollis v. State ex rel. Dep't of Pub. Safety, 2008 OK 31, n.4, 183 P.3d 996, 999 n.4 ("Unless the
lower court's rulings are found to be erroneous as a matter of law, or
unsupported by evidentiary foundation, the appellate courts will not disturb
the findings made.") (emphasis added).
Analysis
The Trial Court Did Not Abuse Its Discretion in Refusing
to Admit the Manufacturer's Certificate of Calibration and the Supplier's
Certificate of Analysis
¶7 At trial, DPS attempted to offer into evidence a Certificate of
Calibration for the Intoxilyzer 8000, serial number 80-003810, from the
manufacturer of the device, CMI, Inc. The certificate claims to certify that the
calibration of the device was tested on March 26, 2009, and found to be in
compliance with the National Safety Administration Standard for Devices to
Measure Breath Alcohol. DPS also attempted to offer into evidence a Certificate
of Analysis from ILMO Specialty Gases, a supplier of the gas canisters used as a
reference method for the Intoxilyzer 8000. The certificate claims to certify
that on February 10, 2012, the gas canister, lot number 03112080AI, contained a
ratio of ethanol and nitrogen appropriate for use with breath alcohol testing
instruments. Counsel for Mr. Muratore timely objected to the admission of both
certificates as hearsay.7
¶8 It is undisputed that both certificates are hearsay because they were
offered to prove the truth of the matter asserted--that both devices were in
proper working order.8 But DPS argued both certificates were admissible
under 12 O.S. 2011 § 2803(8), the
public records hearsay exception, which excludes from the hearsay rule:
[A] record of a public office or agency setting forth its regularly
conducted and regularly recorded activities or matters observed pursuant to
duty imposed by law and as to which there was a duty to report, or factual
finding resulting from an investigation made pursuant to authority granted
by law.
¶9 The Certificate of Calibration for the Intoxilyzer 8000 was prepared by
CMI, Inc., the manufacturer of the Intoxilyzer 8000 and signed by one of its
technicians. The Certificate of Analysis for the gas canister was prepared by
ILMO Specialty Gases, a supplier of gas canisters, and signed by a specialty gas
lab technician. As the trial court correctly noted, neither of the certificates
offered by DPS was prepared by a member of the Board of Tests or any other
public officer of this state, so neither is a public record for purposes of the
public records exception to the hearsay doctrine. DPS argued the certificates
were public records because they were regularly kept records of the Board of
Tests, but this argument misses the point. The "[j]ustification for the
exception is the assumption that a public official will perform his duty
properly and the unlikelihood that he will remember details independently of the
record."9
Because these certificates were created by third parties--CMI, Inc., and ILMO
Specialty Gases--and not a public official, the trial court correctly concluded
that the public records exception to the hearsay doctrine did not apply.
¶10 The certificates are also not admissible in this case under the business
records exception to the hearsay doctrine.10 Section 2803(6) excludes from the
hearsay rule:
A record of acts, events, conditions, opinions or diagnosis, made at or
near the time by or from information transmitted by a person with knowledge,
if kept in the course of a regularly conducted business activity, and if it
was the regular practice of that business activity to make the record, all
as shown by the testimony of the custodian or other qualified witness, or by
certification that complies with paragraph 11 or 12 of Section 2902 of this
title, or with a statute providing for certification, unless the source of
information or the method or circumstances of preparation indicate lack of
trustworthiness. The term "business" as used in this paragraph includes
business, institution, association, profession, occupation and calling of
every kind, whether or not conducted for profit.
12 O.S. 2011 § 2803(6).
¶11 Section 2803(6) requires a proper foundation for the admission of
documents pursuant to this exception. A "custodian or other qualified witness"
must testify that the record was made "at or near the time by or from
information transmitted by a person with knowledge," the record was "kept in the
course of a regularly conducted business activity," it was "the regular practice
of that business activity to make the record," and no "source of information or
the method or circumstances of preparation indicate lack of trustworthiness." 12 O.S. 2011 § 2803(6).
¶12 Although these certificates may have been "kept in the course of a
regularly conducted business activity," no custodian or other qualified witness
testified as to whether the certificates were made at or near the time of the
events memorialized in the certificates or whether it was the regular practice
of either CMI, Inc. or ILMO Specialty Gases to make certificates of these types.
The "[r]eliability of business records is said variously to be supplied by
systematic checking, by regularity and continuity which produce habits of
precision, by actual experience of business in relying upon them, or by a duty
to make an accurate record as part of a continuing job or occupation."11 DPS
presented no evidence indicating the reliability of these certificates as
required by § 2803(6).12
¶13 Using a novel theory, COCA concluded that the certificates "kept by the
Board of Tests as part of its regularly kept records, constitute non-testimonial
evidence. As such, the certificates are admissible and admission of those
certificates does not violate the confrontation clause of the Sixth
Amendment."13 Neither party raised the Confrontation Clause
at the hearing with the trial court, nor did they brief the issue.
¶14 The Confrontation Clause provides that "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him."14 The Oklahoma Court of Criminal Appeals has stated
that "under the Confrontation Clause, testimonial hearsay statements may be
admitted against the accused in a criminal trial only when the declarant
is unavailable to testify and the defendant has had a prior opportunity to
cross-examine the declarant." Taylor, 2011 OK CR 8, ¶ 32, 248 P.3d at 373
(citing Crawford, 541 U.S. at 68) (emphasis added). In determining
whether a defendant's Sixth Amendment right to confrontation has been violated,
the critical question is whether the statement is "testimonial" under the
Crawford Doctrine.15
¶15 The Confrontation Clause only applies in criminal cases. The case
before us is an administrative appeal of a revocation of a driver's license, and
the Confrontation Clause cases relied on by COCA are not dispositive of whether
the documents DPS sought to introduce are admissible under the hearsay doctrine.
Although the Confrontation Clause and the hearsay doctrine sometimes coincide,
the doctrines operate independently of one another.16 As the case before us demonstrates,
a statement considered "nontestimonial" and admissible for purposes of the
Confrontation Clause is not necessarily admissible under the hearsay doctrine,
as COCA incorrectly concluded. See, e.g., State v. Pugh, 225 P.3d
892, 831-32 (Wash. 2009) ("Nontestimonial hearsay, on the other hand, is
admissible under the Sixth Amendment subject only to the rules of evidence.").17 Although
some courts have determined these types of certificates are nontestimonial
evidence and admissible in criminal cases under the Confrontation Clause, the
certificates are not admissible in this case under the public records exception
to the hearsay doctrine because they were not prepared by a public official and
are not admissible under the business records exception to the hearsay doctrine
because DPS failed to lay a proper foundation for the admission of the
certificates as required under that exception.
¶16 Regardless of the hearsay exceptions, the certificates were properly
refused because they weren't relevant to whether the device was working at the
time of Mr. Muratore's arrest. see 12 O.S. §§ 2401-2402. Calibration of
this particular Intoxilyzer 8000 was tested and found to be in compliance with
the National Safety Administration Standard for Devices to Measure Breath
Alcohol on March 26, 2009. But that doesn't prove the device continued to
work properly at the time of Mr. Muratore's arrest more than three years
later. Similarly, an analysis of the gas canister when it left the supplier
in March of 2012, is not conclusive proof that the canister contained the
correct ratio of ethanol and nitrogen at the time of Mr. Muratore's arrest a
month later. The trial court did not abuse its discretion in refusing to
admit both certificates.
Evidence in the Record Supports the Trial Court's Decision
to Vacate the
Revocation of Mr. Muratore's Driver's
License
¶17 On cross-examination, counsel for Mr. Muratore questioned Officer Harwell
about inaccuracies contained in the affidavit that revoked Mr. Muratore's
driver's license. The officer testified he manually put in the information at
the top of the affidavit, including the arrest date of April 22, 2012,18 but that
the arrest date on the affidavit was incorrect because Mr. Muratore was actually
arrested on April 21, 2012.19 The officer also testified that the Intoxilyzer
8000 automatically input the signature date, which was April 21, 2012.20 He
testified he did not sign the affidavit on the 21st as the affidavit indicated
and that date was error.21 The officer testified the date the affidavit was
served showed April 21, 2012, but that he did not serve Mr. Muratore on the 21st
as the affidavit indicated and that date was also error.22 The exchange on
cross-examination concluded as follows:
Q: So we can feel comfortable that this affidavit is accurate?
A: Yes,
sir.
Q: Well, we know it's inaccurate, don't we?
A: The dates, yes
sir.
Q: We can feel comfortable in that respect, can't we?
A: Yes,
sir.23
The trial court found these inaccuracies troubling:
How does the machine put a date earlier for the completion of the test
rather than the day that he says the test should have been completed? See,
it says here the date of arrest he put in, this is the testimony I heard,
4/22. And it was really 4/21, just before midnight. . . . But the machine -
well, actually the machine has it right there . . . says we started the
deprivation period at twenty-three fifty-one on 4/21. And it was finished
apparently at zero zero one three of 4/21, which was the day before because
that's when it generated that he served notice and he signed it. I have no
explanation for that. He had no explanation. He said, "Well now, part of
this was my error but the other part wasn't," the other part was
auto-populated by the machine. That's something that can't be explained.24
¶18 The trial court was also concerned that although an administrative rule
requires the Board of Tests to implement maintenance procedures for the
Intoxilyzer 8000, at the time of Mr. Muratore's trial, the Board of Tests hadn't
actually implemented any rules governing the maintenance of these particular
machines. Section 30-1-3(j) of Title 40 of the Administrative Code provides:
(j) Maintenance. Maintenance shall be performed on the CMI 8000
Intoxilyzer, equipped with nitrogen-ethanol dry gas mixture, at such time as
the regulator of the nitrogen-ethanol pressurized dry gas canister fails to
provide a gas sample for analysis or by the manufacturers stated expiration
date, whichever occurs first. Such maintenance shall be performed by
Board personnel, according to the procedure(s) prescribed by the State
Director of Tests for Alcohol and Drug
Influence.
Okla. Admin. Code § 40:30-1-3 (emphasis added).
¶19 The following exchange took place between counsel for DPS and the trial
court:
[The Court]: But let's cut right to the chase, are there rules and
regulations or actions by the Department governing the maintenance of these
machines -- the "Department" meaning the Board of Tests - either acting
through its director or acting as the Board itself? Does the Department have
any knowledge of rules, regulations, and procedures adopted by the Board or
promulgated by the Board or adopted by the then Department head?
Ms. Horn: I know that the bench check procedure has been adopted over
there, they have been using it for five years. Now, whether Blackburne
approved it or whether -
. . . .
The Court: But the question is just much more yes or no than that. Are
there rules, procedures adopted by the Board, either sitting as a board or
through its director, that govern the maintenance and the bench check
procedures of the machine, the 8000?
Ms. Horn: Well, I have provided the Court what I've got -
The Court: [Y]ou have previously told me in other cases "No, there are
not." You actually called the Board and they said, "No, he didn't really do
that," "he" being the director at the time. I'll tell you we have been
offered none.25
¶20 Without any rules governing the maintenance of the Intoxilyzer 8000,
there is no way to verify the bench check procedure referred to by counsel for
DPS is sufficient to ensure the proper maintenance of these machines or that the
person who performed the bench check was in fact qualified to perform
maintenance on an Intoxilyzer 8000. Additionally, according to Exhibit 6, an
affirmation of a resolution by the Board of Tests dated June 12, 2008, the
pressurized gas cylinder used as a reference method for the Intoxilyzer 8000
must contain "a known breath-alcohol equivalent ratio of nitrogen and ethanol
gas."26 But
without any rules governing the maintenance of the Intoxilyzer 8000, there is no
way to verify, through the bench check procedure or otherwise, whether the
attached pressurized gas cylinder contained the correct ratio of nitrogen to
ethanol.27
¶21 "[O]ne of the main purposes of the Board of Chemical Tests for Alcoholic
Influence is to promulgate rules and regulations on operation and maintenance of
breathalyzer equipment in order to assure the accuracy of the tests run on
this equipment. . . . [F]ailure to comply with all the rules invalidates tests
given on the equipment." Westerman, 1974 OK CR 151, ¶ 10, 525 P.2d at 1361
(emphasis added). In driver's license revocation proceedings before the District
Court, DPS bears the burden of proving, among other things, that a valid
breathalyzer test was performed on a properly maintained testing device. DPS
can't carry this burden when the Board of Tests has not implemented any rules
governing the maintenance of the Intoxilyzer 8000.
Conclusion
¶22 The standard of review in cases of this nature requires the appellate
courts to give deference to the trial court's findings and affirm if there is
any evidence or any reasonable inference to be drawn from that evidence, which
tends to support the trial court's findings. The inaccuracies in the officer's
affidavit coupled with the lack of prescribed maintenance procedures for the
Intoxilyzer 8000 is more than enough evidence to affirm the trial court's
findings in this case, and we find that COCA improperly substituted its judgment
for that of the trial court's in this case. DPS did not meet its threshold
burden of proving all the facts necessary to sustain the revocation of Mr.
Muratore's license, and the trial court's decision to vacate the revocation of
Mr. Muratore's Driver's License is affirmed. Today's decision shall apply
prospectively, controlling only those administrative proceedings currently
pending before DPS and only those administrative appeals currently pending in
the district courts or filed in the district courts after the issuance of this
opinion. Today's opinion shall have no effect on revocation proceedings that
have become final judgments.28
¶23 COLBERT, C.J., REIF, V.C.J., KAUGER, EDMONDSON, COMBS and GURICH, JJ. -
concur.
¶24 WATT, WINCHESTER and TAYLOR, JJ. - dissent.
