MURATORE v. STATE ex rel. DEPT. OF PUBLIC SAFETY

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MURATORE v. STATE ex rel. DEPT. OF PUBLIC SAFETY

2014 OK 3

320 P.3d 1024

Case Number: 111586

Decided: 01/28/2014

THE SUPREME COURT OF THE STATE OF OKLAHOMA

Cite as: 2014 OK 3 , 320 P.3d 1024

MARK M. MURATORE, Plaintiff-Appellee,

v.

STATE OF

OKLAHOMA, ex rel., DEPARTMENT OF PUBLIC SAFETY, Defendant-Appellant.

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I,

ON

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY,

STATE

OF OKLAHOMA, HONORABLE JAMES B. CROY

¶0 Mark Muratore, after being arrested for driving under the influence,

submitted to a breathalyzer test. The breathalyzer test was administered using

the Intoxilyzer 8000, and the test result reflected an alcohol concentration of

.11. The Department of Public Safety revoked Mr. Muratore's driver's license for

one year, and he appealed the revocation to the District Court of Oklahoma

County on issues of the admissibility of the breathalyzer test. The trial court

vacated the revocation of Mr. Muratore's driver's license, finding that the

Board of Tests had no rules in place governing maintenance procedures for the

Intoxilyzer 8000 and that the manufacturer's certificate of calibration for this

particular Intoxliyzer 8000 and the supplier's certificate of analysis for the

gas canister used as a reference method for the Intoxilyzer 8000 were

inadmissible hearsay. The Court of Civil Appeals reversed. We granted certiorari

and find that 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. We also find that the Department of Public Safety did not meet its

threshold burden of proving all the facts necessary to sustain the revocation of

Mr. Muratore's license, and the record supports the trial court's decision to

vacate the revocation of Mr. Muratore's driver's license.

COCA OPINION VACATED; TRIAL COURT'S ORDER VACATING

THE

REVOCATION OF PLAINTIFF-APPELLEE'S DRIVER'S LICENSE

AFFIRMED

Stephen G. Fabian, Jr., Oklahoma City, Oklahoma, Attorney for

Plaintiff-Appellee

Joanne Horn, Assistant General Counsel, Department of

Public Safety, Oklahoma City, Oklahoma, Attorney for

Defendant-Appellant

GURICH, J.

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.

FOOTNOTES

1

Oklahoma Administrative Code § 40:30-1-3(h) provides:

(h) Analysis. Each such analysis shall include the following

steps:

(1) Observation of the subject whose breath is to be tested sufficient to

determine that, for a period of at least fifteen (15) minutes prior to the

collection of the first breath specimen, and continuing through the second

breath specimen, the subject shall not have ingested alcohol in any form or any

other substance, vomited, or smoked. Such observation shall be carried out by

the breath-alcohol analysis Operator or Specialist or by any other qualified

person.

(2) Analysis for alcohol of two (2) or more specimens of breath consisting

substantially of expired alveolar air.

(3) A blank analysis preceding analysis of each breath specimen.

(4) Analysis for alcohol of at least one suitable reference or control sample

of a known alcohol concentration, such as air equilibrated at a known

temperature with a reference solution of known ethyl alcohol content in an

alcoholic breath simulator device approved by the Board or a Board approved

nitrogen-ethanol dry gas reference method. The results of each such control

analysis must coincide with the corresponding vapor-alcohol concentration target

value within plus or minus one-hundredths gram per two hundred and ten liters (±

0.01g/210L).

(5) The operator performing each such analysis shall properly complete a

Breath-Alcohol Analysis Record and Report form prescribed and designated by the

State Director of Tests for Alcohol and Drug Influence, and shall promptly

forward one (1) copy thereof to the Oklahoma Department of Public Safety, and to

other agencies and persons listed on the form.

Okla. Admin. Code § 40:30-1-3 (h).

2

Transcript of Proceedings, Def. Ex. 3.

3

Id.

4 On

direct examination the officer testified:

Q: And what was the arrest date; what was the arrest date?

A: The arrest

date would have been the 21st.

Q: So that's an error on the affidavit?

A:

Yes, ma'am.

Transcript of Proceedings at 24.

5 The

exchange on cross-examination was as follows:

Q: You said you served him on the 21st on this affidavit, that you swore was

the truth, the whole truth, and nothing but the truth, you said here that you

served him on the 21st?

A: Yes, sir.

Q: Now you're telling us that was an

error?

A: It was an error.

Q: Okay. In the next section, section four, you

swore under oath and it says on the 21st that this information is true and

correct?

A: Yes, sir, I did sign that.

Q: I take it you did it on that

date; correct?

A: On which date?

Q: Well, the 21st. That's what you have

on your affidavit.

A: That I served him?

Q: That's what you said?

A:

Yes, sir. On the Officer's Affidavit, it does state that. That is an

error.

Q: Well, did you make an error in two places?

A: Yes, sir.

Transcript of Proceedings at 24-25.

6 At

trial, the following exhibits were admitted into evidence: 1) the DPS Order

issued November 9, 2012, sustaining the revocation of Mr. Muratore's driver's

license; 2) Mr. Muratore's driving index; 3) the Officer's Affidavit and Notice

of Revocation; 4) a copy of the Board of Tests Administrative Rules, 40:30-1-3;

5) a copy of the affirmation of a resolution as made at a meeting of the Board

of Tests to approve the Intoxilyzer 8000; 6) a copy of the affirmation of a

resolution by the Board of Tests that the pressurized gas cylinders containing a

known breath alcohol equivalent ration of nitrogen and gas are approved for

using in breath alcohol simulators; 7) Action 08-05 of the Board of Tests

approving the mouthpieces to be used in breath-alcohol analysis; 8) Action 09-02

of the Board of Tests stating the operating procedure for breath-alcohol

analysis with the Intoxilyzer 8000 and external printer; 9) Certificate of

Calibration and Operation for Intoxilyzer 8000, serial number 80-003810,

prepared by the Board of Tests; 10) Bench check for Intoxilyzer 8000, serial

number 80-003810, using an ILMO cylinder with lot number of 031120801AI. DPS

also offered Exhibit 11 Certificate of Calibration from CMI, Exhibit 12 ILMO

Specialty Gasses Certificate of Analysis, Exhibit 13 Aid to Court and Exhibit 14

Implied Consent Test Request (part of stipulation). The trial court denied their

admission but made them part of the record as offers of proof.

Transcript of Proceedings at 4-6; 15-17.

7

Transcript of Proceedings at 15; 38-39. see Weathers v. Fulgenzi ,

1994 OK 119, ¶ 23 , 884 P.2d 538, 543 (finding that an

objection to admission of certain evidence must appear in the record for the

issue to be preserved for appellate review).

8 12 O.S. 2011 § 2801(A)(3).

9 Fed. R.

Evid. 803(8) advisory committee's note (emphasis added); see also

Hadley v. Ross , 1944 OK

366, ¶ 18 , 154 P.2d 939 ,

941-42 ("The exception to the hearsay rule in this regard is justified because

of convenience and necessity, in view of the fact that it is well recognized

that officials perform their duties under oath without prejudice and

bias, impelled only by official responsibility and duty. It must also be

presumed that their duties are performed efficiently and accurately; their

records are therefore considered trustworthy.") (emphasis added).

10

Although the trial court did not rule on whether the certificates were

admissible under the business records exception to the hearsay doctrine, counsel

for DPS argued:

The records of a public agency setting forth regularly conducted and recorded

activities are excluded from hearsay. The records made in the course of

regularly conducted business activity are exempt from the hearsay rule. Those

are both under Title 12, Oklahoma Statutes 2803, respectively sections eight

and six .

Transcript of Proceedings at 33 (emphasis added).

11

Fed. R. Evid. 803(6) advisory committee's note.

12 DPS

argued the certificates were reliable because they were certified copies fixed

with the state seal. Under § 2803(6), certification that complies with 12 O.S. 2011 §§ 2902(11) & (12)

can be used to lay a proper foundation for the admission of documents pursuant

to this exception. But certification under 12 O.S. 2011 §§ 2902(11) & (12)

does not mention documents fixed with the state seal. Rather subsections (11)

and (12) require that " the document is accompanied by a written declaration

under oath of the custodian of the record, or other qualified individual that

the record was made, at or near the time of the occurrence of the matters

set forth by or from information transmitted by a person having knowledge of

those matters; was kept in the course of the regularly conducted business

activity; and was made pursuant to the regularly conducted activity." 12 O.S. 2011 § 2902(11) & (12)

(emphasis added). The certificates in this case were not accompanied by a

written declaration under oath from the custodian of the records at either CMI

Inc. or ILMO Specialty Gases.

13

Mark Muratore v. State, ex rel. Dep't of Pub. Safety , Case No. 111,586,

at 14 (May 10, 2013) (published).

14

U.S. Const. amend. VI (emphasis added). The "right to confrontation [is]

guaranteed by the Sixth and Fourteenth Amendments and Article 2, section 20 of

the Oklahoma Constitution." Taylor v. State , 2011 OK CR 8, ¶ 32 , 248 P.3d 362, 373 .

15

Taylor , 2011 OK CR 8, ¶

32 , 248 P.3d at 373 ("[T]he proper focus is whether the challenged statement is

'testimony' against the defendant, triggering the constitutional requirement of

an opportunity for cross-examination."); U.S. v. Hendricks , 395 F.3d 173 ,

179 (3d Cir. 2005) ("The lynchpin of the Crawford decision thus is its

distinction between testimonial and nontestimonial hearsay; simply put, the rule

announced in Crawford applies only to the former category of

statements.").

16

Matter of W.D. , 1985 OK 65 ,

¶ 13, 709 P.2d 1037 , 1042 ("While

it may readily be conceded that hearsay rules and the confrontation clause are

generally designed to protect similar values, it is quite a different thing to

suggest that the overlap is complete and that the Confrontation Clause is

nothing more or less than a codification of the rules of hearsay and their

exception as they existed at common law."); Seely v. State , 282 S.W.3d

778, 782 (Ark. 2008) ("In order for hearsay statements to be admissible against

a defendant at a criminal trial, two separate requirements must be met. First,

an exception to the general rule prohibiting hearsay must be demonstrated.

Second, the admission of the hearsay cannot violate the defendant's Sixth

Amendment right "to be confronted with the witnesses against him.") (citations

omitted); Vigil v. State , 98 P.3d 172, 177 (Wyo. 2004) ("While the

Confrontation Clause and hearsay may overlap, they are distinct concepts and

objections grounded upon these principles incorporate separate analyses.")

(citations omitted).

17

See also Davis v. Washington , 547 U.S. 813, 821 (2006) ("It

is the testimonial character of the statement that separates it from other

hearsay that, while subject to traditional limitations upon hearsay evidence, is

not subject to the Confrontation Clause."); Crawford , 541 U.S. at 68

("Where nontestimonial hearsay is at issue, it is wholly consistent with the

Framers' design to afford the States flexibility in their development of hearsay

law--as does Roberts , and as would an approach that exempted such

statements from Confrontation Clause scrutiny altogether.").

18

Transcript of Proceedings at 26.

19

Transcript of Proceedings at 24.

20

Id. at 31.

21

Id. at 25.

22

Id.

23

Id. at 26.

24

Id. at 41-42.

25

Id. at 42-43 (emphasis added).

26

Transcript of Proceedings, Ex. 6.

27 In

stark contrast to the complete lack of rules for maintenance of the Intoxilyzer

8000, the prescribed maintenance procedures for the Intoxilyzer 5000

require:

(e) Maintenance. Maintenance shall be performed as follows on the

above listed equipment at least once during each thirty (30) day period and not

later than thirty (30) days since the last prior such maintenance, or after the

testing of twenty five (25) subjects, whichever occurs first, by a person

possessing a valid Breath Alcohol Analysis (Specialist) permit issued by the

Board:

(1) A thorough inspection of the equipment for cleanliness and determination

that it is in proper operating condition shall be performed.

(2) The reference ethyl alcohol solution in the alcoholic breath simulator

device shall be replaced with new solution and one (1) or more verification

analyses performed with the new solution. Each verification analysis shall be

performed in accordance with the Operating Procedure(s) prescribed by the State

Director of Tests for Alcohol and Drug Influence. The result of each such

verification analysis must coincide with the corresponding vapor-alcohol

concentration target value within plus or minus one-hundredths gram per two

hundred and ten liters (± 0.01g/210 L).

(3) The administrative maintenance performed, shall include; results of said

verification analyses, date of inspection, and a record of the inspection will

be documented on the log of tests and maintenance record retained by the breath

analysis instrument in digital form as prescribed and designated by the State

Director of Tests for Alcohol and Drug Influence.

Okla. Admin. Code § 40:30-1-3 (e). Although not binding on this Court, in 2007

COCA held that the maintenance log for the Intoxilyzer 5000 that was offered

into evidence was admissible under the public records exception to the hearsay

doctrine because a state officer performed certain maintenance on the

Intoxilyzer 5000 pursuant to his duties as a public official and recorded this

fact in a record required to be kept by law. Clark v. State ex rel.

Department of Public Safety , 2007 OK CIV APP 12 , 153 P.3d 77 . However, in the

case before us, the machine at issue is an Intoxilyzer 8000, and DPS did not

seek to admit a maintenance log for this particular Intoxilyzer

8000.

28

see Cornett v. Carr , 2013 OK 30, ¶ 14 , 302 P.3d 769, 773 (citing Depuy

v. Hoeme , 1989 OK 42, ¶ 10 ,

775 P.2d 1339, 1343-1344 )

(explaining that a judgment stands as final when the time to appeal has expired,

is impervious to reconsideration, and is binding on the

parties).

Citationizer © Summary of Documents Citing This Document Cite

Name

Level

None Found.

Citationizer: Table of Authority Cite

Name

Level

Oklahoma Court of Criminal Appeals Cases

Cite Name Level

1974 OK CR 151 , 525 P.2d 1359 , WESTERMAN v. STATE Discussed at Length

2011 OK CR 8 , 248 P.3d 362 , TAYLOR v. STATE Discussed at Length

Oklahoma Court of Civil Appeals Cases

Cite Name Level

2007 OK CIV APP 12 , 153 P.3d 77 , CLARK v. STATE ex rel. DEPT. OF PUBLIC SAFETY Discussed

2007 OK CIV APP 56 , 164 P.3d 250 , DERRICK v. STATE ex rel. DEPT. OF PUBLIC SAFETY Discussed

Oklahoma Supreme Court Cases

Cite Name Level

1989 OK 42 , 775 P.2d 1339 , 60 OBJ 803, Depuy v. Hoeme Discussed

1994 OK 119 , 884 P.2d 538 , 65 OBJ 3676, Weathers v. Fulgenzi Discussed

2001 OK 90 , 37 P.3d 841 , 72 OBJ 3071, KERR v. CLARY Discussed

1944 OK 366 , 154 P.2d 939 , 195 Okl. 89 , HADLEY v. ROSS Discussed

2008 OK 31 , 183 P.3d 996 , HOLLIS v. STATE ex rel. DEPT. OF PUBLIC SAFETY Discussed

2013 OK 30 , 302 P.3d 769 , CORNETT v. CARR Discussed

2013 OK 98 , 315 P.3d 989 , HEDRICK v. COMMISSIONER OF DEPT. OF PUBLIC SAFETY Cited

1984 OK 16 , 680 P.2d 365 , Smith v. State ex rel. Dept. of Public Safety Discussed at Length

1984 OK 21 , 681 P.2d 750 , Appeal of Dungan Discussed

1985 OK 65 , 709 P.2d 1037 , 56 OBJ 1819, W.D., Matter of Discussed

Title 12. Civil Procedure

Cite Name Level

12 O.S. 2801 , Definitions Cited

12 O.S. 2803 , Hearsay Exceptions - Availability of Declarant Immaterial Discussed at Length

12 O.S. 2902 , Self-Authentication Discussed at Length

Title 47. Motor Vehicles

Cite Name Level

47 O.S. 6 -211, Right of Appeal to Court Discussed

47 O.S. 754 , Surrender or Seizure of License - Receipt as Temporary License - Revocation or Denial of Driving Privilege - Hearing Cited