MEMORANDUM OPINION
THERESA CARROLL BUCHANAN, United States Magistrate Judge.
I.
Introduction
THIS MATTER came before the Court for trial on July 16, 2009.
Defendant is charged with speeding 62 miles per hour in a 40 miles per hour zone, driving under the influence of alcohol and driving while intoxicated. During the trial, the Government moved to admit five exhibits into evidence. Defendant objected to admission of all five exhibits and the Court took the matter under advisement to issue this Memorandum Opinion.
Early in the morning on May 8, 2009, Officer Pente Gillespie of the National Park Police stopped defendant Scott P. Forstell (“defendant”) while defendant was driving on the George Washington Parkway. Defendant was pulled over for speeding 62 miles per hour in a 40 miles per hour zone. While conversing with defendant, Officer Gillespie noticed that the defendant smelled of alcohol and that his eyes appeared red and glassy. After defendant was unable to perform a series of roadside sobriety tests satisfactorily, Officer Gillespie transported defendant to a station house in order to administer a breathalyser test to defendant.
At defendant’s trial, the government called Officer Gillespie to testify about the events of May 8, 2009 and moved for the admission of five exhibits. Government Exhibit 1 is a certificate signed by a technician with the Radar Lab of Maryland certifying that a Speed Measuring Radar Device had been checked for accuracy and correctness of operation.
Government Exhibit 2 is a certificate signed by a technician of the Radar Lab of Maryland certifying that tuning forks bearing serial numbers 093050 and 093084 had been tested and found to be operating properly.
Government Exhibit 3 is the Intoxilyzer 5000EN Maintenance Record for the In-toxilyzer unit bearing Serial Number 68-
010813.
Government Exhibit 4 is a certification notice for Intoxilyzer model 5000EN, serial number 68-010813, and notes that the model has been tested and found to be suitable for use in analyzing breath alcohol.
Government Exhibit 5 is the results report for two breath tests administered to Scott P. Forstell on May 8, 2009 by Officer Gillespie.
Defendant objects to the admission of Government Exhibits 1 through 5 on the grounds that the recent decision of the United States Supreme Court in
Melendez-Diaz v. Massachusetts,
- U.S. -, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), bars the admission of certificates of accuracy or maintenance in the absence of live testimony from the technicians who performed the tests. Additionally, Defendant alleges the accuracy of Government Exhibits 3 and 4 has not been established because the government did not provide testimony of the person who certified Government Exhibits 3 and 4 and allow the defendant to cross-examine that person.
For the reasons discussed below, the Court overrules defendant’s objections to Government Exhibits 1 through 5.
II.
Discussion
In
Melendez-Diaz,
the Supreme Court held that the admission of certificates of analysis, offered by the prosecution in a drug trial, stating that the material seized by police and connected to the defendant was cocaine of a certain quantity, violated the defendant’s Sixth Amendment right to confront the witnesses against him. Specifically, the Court found that the certificates of analysis were more appropriately described as affidavits and fell within the “core class of testimonial statements” covered by the Confrontation Clause. 129 S.Ct. at 2532 (internal citation omitted). The Court further found that, under
Crawford v. Washington,
541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the analysts’ affidavits were testimonial, and, thus, the analysts were witnesses for the purposes of the Sixth Amendment.
Melendez-Diaz,
129 S.Ct. at 2532. Therefore, unless the analysts were unavailable to testify at trial and the defendant had been afforded a prior opportunity to cross-examine them, the Confrontation Clause required that the prosecution call the analysts to testify.
Id.
In the instant case, Officer Gillespie testified that Sergeant Donald N. Upright, the U.S. Park Police technician who signed the certificates presented as Government Exhibits 3 and 4, was not present in the courtroom. Similarly, the technician who signed the certifications of accuracy for the laser and tuning fork, presented as Government Exhibits 1 and 2, respectively, also was not present in the courtroom. It is defendant’s position that exhibits 1 through 4 should not be admitted in the absence of the technicians’ testimony.
It is clear, however, that Government Exhibits 1 through 4 are nontestimonial and, thus, their admission does not run afoul of the Confrontation Clause. Indeed, the
Melendez-Diaz
decision explicitly notes that the Court “d[id] not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of sample, or
accuracy of the testing device, must appear in person as part of the prosecution’s case.” 129 S.Ct. at n. 1.
See also Larkin v. Yates,
2009 WL 2049991, n. 2 (C.D.Cal.2009) (noting that
Melendez-Diaz
“explicitly rejected the suggestion that the Confrontation Clause required that every person whose testimony might be relevant to the authenticity of sample or accuracy of a testing device appear in person as part of the prosecution’s case”) “Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.”
Melendez-Diaz,
129 S.Ct. at n. 1.
Defendant does not argue that the certificates at issue do anything more than verify the accuracy of the testing devices and equipment used by the United States Park Police.
Indeed, the information contained in Government Exhibits 1 through 4 merely confirms that routine accuracy and maintenance tests were performed on the laser device, tuning fork, and Intoxilyzer 5000EN unit. Certificates regarding such routine information fit squarely into the category of nontestimonial records carved out by the Supreme Court. Thus, the government is not required to make available at trial the technicians who performed the tests in order for the certificates to be admissible.
The admission of Government Exhibit 5 also does not contravene the Confrontation Clause. Government Exhibit 5 contains the results from the breath test administered to defendant by Officer Gillespie. In addition to offering the exhibit at trial, the prosecution called Officer Gillespie to testify as to the steps he performed in administering the breath test to defendant.
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MEMORANDUM OPINION
THERESA CARROLL BUCHANAN, United States Magistrate Judge.
I.
Introduction
THIS MATTER came before the Court for trial on July 16, 2009.
Defendant is charged with speeding 62 miles per hour in a 40 miles per hour zone, driving under the influence of alcohol and driving while intoxicated. During the trial, the Government moved to admit five exhibits into evidence. Defendant objected to admission of all five exhibits and the Court took the matter under advisement to issue this Memorandum Opinion.
Early in the morning on May 8, 2009, Officer Pente Gillespie of the National Park Police stopped defendant Scott P. Forstell (“defendant”) while defendant was driving on the George Washington Parkway. Defendant was pulled over for speeding 62 miles per hour in a 40 miles per hour zone. While conversing with defendant, Officer Gillespie noticed that the defendant smelled of alcohol and that his eyes appeared red and glassy. After defendant was unable to perform a series of roadside sobriety tests satisfactorily, Officer Gillespie transported defendant to a station house in order to administer a breathalyser test to defendant.
At defendant’s trial, the government called Officer Gillespie to testify about the events of May 8, 2009 and moved for the admission of five exhibits. Government Exhibit 1 is a certificate signed by a technician with the Radar Lab of Maryland certifying that a Speed Measuring Radar Device had been checked for accuracy and correctness of operation.
Government Exhibit 2 is a certificate signed by a technician of the Radar Lab of Maryland certifying that tuning forks bearing serial numbers 093050 and 093084 had been tested and found to be operating properly.
Government Exhibit 3 is the Intoxilyzer 5000EN Maintenance Record for the In-toxilyzer unit bearing Serial Number 68-
010813.
Government Exhibit 4 is a certification notice for Intoxilyzer model 5000EN, serial number 68-010813, and notes that the model has been tested and found to be suitable for use in analyzing breath alcohol.
Government Exhibit 5 is the results report for two breath tests administered to Scott P. Forstell on May 8, 2009 by Officer Gillespie.
Defendant objects to the admission of Government Exhibits 1 through 5 on the grounds that the recent decision of the United States Supreme Court in
Melendez-Diaz v. Massachusetts,
- U.S. -, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), bars the admission of certificates of accuracy or maintenance in the absence of live testimony from the technicians who performed the tests. Additionally, Defendant alleges the accuracy of Government Exhibits 3 and 4 has not been established because the government did not provide testimony of the person who certified Government Exhibits 3 and 4 and allow the defendant to cross-examine that person.
For the reasons discussed below, the Court overrules defendant’s objections to Government Exhibits 1 through 5.
II.
Discussion
In
Melendez-Diaz,
the Supreme Court held that the admission of certificates of analysis, offered by the prosecution in a drug trial, stating that the material seized by police and connected to the defendant was cocaine of a certain quantity, violated the defendant’s Sixth Amendment right to confront the witnesses against him. Specifically, the Court found that the certificates of analysis were more appropriately described as affidavits and fell within the “core class of testimonial statements” covered by the Confrontation Clause. 129 S.Ct. at 2532 (internal citation omitted). The Court further found that, under
Crawford v. Washington,
541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the analysts’ affidavits were testimonial, and, thus, the analysts were witnesses for the purposes of the Sixth Amendment.
Melendez-Diaz,
129 S.Ct. at 2532. Therefore, unless the analysts were unavailable to testify at trial and the defendant had been afforded a prior opportunity to cross-examine them, the Confrontation Clause required that the prosecution call the analysts to testify.
Id.
In the instant case, Officer Gillespie testified that Sergeant Donald N. Upright, the U.S. Park Police technician who signed the certificates presented as Government Exhibits 3 and 4, was not present in the courtroom. Similarly, the technician who signed the certifications of accuracy for the laser and tuning fork, presented as Government Exhibits 1 and 2, respectively, also was not present in the courtroom. It is defendant’s position that exhibits 1 through 4 should not be admitted in the absence of the technicians’ testimony.
It is clear, however, that Government Exhibits 1 through 4 are nontestimonial and, thus, their admission does not run afoul of the Confrontation Clause. Indeed, the
Melendez-Diaz
decision explicitly notes that the Court “d[id] not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of sample, or
accuracy of the testing device, must appear in person as part of the prosecution’s case.” 129 S.Ct. at n. 1.
See also Larkin v. Yates,
2009 WL 2049991, n. 2 (C.D.Cal.2009) (noting that
Melendez-Diaz
“explicitly rejected the suggestion that the Confrontation Clause required that every person whose testimony might be relevant to the authenticity of sample or accuracy of a testing device appear in person as part of the prosecution’s case”) “Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.”
Melendez-Diaz,
129 S.Ct. at n. 1.
Defendant does not argue that the certificates at issue do anything more than verify the accuracy of the testing devices and equipment used by the United States Park Police.
Indeed, the information contained in Government Exhibits 1 through 4 merely confirms that routine accuracy and maintenance tests were performed on the laser device, tuning fork, and Intoxilyzer 5000EN unit. Certificates regarding such routine information fit squarely into the category of nontestimonial records carved out by the Supreme Court. Thus, the government is not required to make available at trial the technicians who performed the tests in order for the certificates to be admissible.
The admission of Government Exhibit 5 also does not contravene the Confrontation Clause. Government Exhibit 5 contains the results from the breath test administered to defendant by Officer Gillespie. In addition to offering the exhibit at trial, the prosecution called Officer Gillespie to testify as to the steps he performed in administering the breath test to defendant.
Officer Gillespie stated that, upon arriving at the District-2 substation, he offered defendant a glass of water, read defendant his rights and quoted to defendant the chemical testing notice contained in 36 C.F.R. § 4.23.
Defendant then indicated he would take the breath test. Officer Gillespie further testified that he sat across from defendant for the requisite 20-minute waiting and observation period before administering the test and that defendant did not vomit, hiccup or burp during that time. Before conducting the test, Officer Gillespie inspected defendant’s mouth, as required, and then administered the first breath test at 1:52 am. The second breath test was conducted at 1:58 am. According to the officer’s testimony, there was no radio interference with the test and, before administering the test, he reviewed the unit’s log book to verify that no problems had been logged with previous tests. Finally, Officer Gillespie testified that he looked at the certification sticker on the Intoxilyzer unit to be sure that the expiration had not passed and also checked to be sure the solution in the unit
had not expired. Accordingly, defendant had the opportunity to cross-examine Officer Gillespie regarding any or all of these steps in order to determine whether he properly performed the test. Thus, with respect to Government Exhibit 5, defendant’s right to confrontation was satisfied by his cross-examination of Officer Gillespie.
III.
Conclusion
For the reasons stated above, defendant’s objections to Government Exhibits 1 through 5 are overruled. An Order shall issue forthwith. The parties are directed to contact chambers to schedule a date to continue defendant’s trial.