Lack of Witnesses Makes Breath Tests Inadmissible

by baronedefensefirm on July 31, 2009

 Prior articles on have discussed the significance of the recent USSC case of Melendez-Diaz.  These articles have discussed how the Supreme Court’s ruling in this case will make it more difficult for prosecutors to gain convictions in drunk driving cases through the use of breath or blood test results.

A recent article on the LawyersUSA web site suggests that we were correct.  The article reports that DUI defense lawyers around the country are already capitalizing on this case and using it in their efforts to win their client’s cases.  The article states that top DUI Defense attorney Jim Nesci said that:


Jim Nesci in his Arizona office

Melendez challenges will ask courts to force prosecutors to make witnesses appear at trial to testify about breath or blood test evidence that normally is admitted through documents or affidavits.

Nesci has already filed a motion in one of his cases asking the court to require that the state present four live witnesses as a condition of admitting Intoxilyzer results. And on July 17, a Virginia trial court dismissed drunk driving charges in a case where the state presented a breath test certificate, without the testimony of the officer who performed the test.

Nesci is going for a quadruple-play.

He is arguing that before the results of his client’s breath test can be admitted, the prosecutor must make available four witnesses for cross-examination: the breath test operator, the analyst who calibrated the machine, the quality assurance specialist who maintains the machine and the outside analyst who prepared the dry-gas standard in the machine.

Two of the four experts are from outside companies and would have to be brought in from out of state.

It is obvious how much more difficult it will be for the state to gain convictions if the Arizona courts agree with Nesci.  Melendez-Diaz addressed this issue however in stating that all of the contititional protections make convictions more difficult, from burden of proof to presumption of innocence. Since such simulator records deal with another constitutional protection, that is, the right to confront one’s accusers, the court said that this argument was irrelevant.

So far there have been no published drunk driving cases in Michigan where this issue has been raised.  Michigan law requires that the DataMaster breath testing device be tested once ever calendar week with a .08 simulator solution and inspected every four months by a “class VI” inspector.  Previously the documents necessary to demonstrate compliance, called “simulator logs,” have been admitted as business records.

Meledez-Diaz suggests that this is no longer true.  However, the LawyersUSA article also addresses footnote 1 as follows:

In Footnote 1, the majority says, “We do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case. … Additionally, documents prepared in the course of equipment maintenance may well qualify as nontestimonial records.”

The question in Michigan will therefore be whether or not these simulator logs qualify as nontestimonial maintenance records.  The LawyersUSA article suggests that such logs fall into a “grey area.” 

Michigan DUI attorney Patrick T. Barone disagrees.  Barone has indicated:  “I’m not inclined to agree the simulator logs fall into a grey area.  Instead, I believe that simulator logs are unquestionably ‘testimonial.’” 

If Michigan’s courts agree with Barone, then the prosecutor will need to bring in the simulator operators and 120 day inspectors.

It will be interesting to watch how this issue plays out in Michigan, and if Michigan’s judges are willing to make prosecutors bring in more witnesses in drunk driving trials.  As this issue develops in Michigan we will update this blog.  Stay tuned….


This post was written by...

– who has written 203 posts on Michigan DUI and License Restoration Lawyers.

Patrick T. Barone is the author on two books on DUI defense including the well respected two volume treatise Defending Drinking Drivers (James Publishing), and The DUI Book – A Citizen’s Guide to Understanding DUI Litigation in America. He is also the author of a monthly DUI defense column for the Criminal Defense Newsletter, published by Michigan’s State Appellate Defender’s Office. Mr. Barone is an adjunct professor at the Thomas M. Cooley Law School where he teaches Drunk Driving Law and Practice. He is also on the faculty of the Criminal Defense Attorney’s of Michigan’s Trial Lawyer’s College where he provides trial skills training to Michigan’s criminal defense practitioners. Mr. Barone lectures nationally on various DUI defense topics, and he has appeared in newspapers, on television and on radio as a drunk driving defense expert. Mr. Barone has been certified as an instructor and practitioner of the Standardized Field Sobriety Tests and has also attended a 24-hour certification course at National Patent Analytical Corporation (the manufacturer of the DataMaster) and has thereby been deemed competent by the manufacturer to operate, perform essential diagnostic verifications and calibration checks on the DataMaster. Mr. Barone is a Sustaining Member of College for DUI Defense. Mr. Barone is the principal and founding member of The Barone Defense Firm, whose practice is limited exclusively to defending drinking drivers. The Firm is headquartered in Birmingham, Michigan.

Leave a Comment

Refresh Image

Previous post:

Next post: