2012-0716, State of New Hampshire v. Bryan Maga

The defendant, Bryan Maga, appeals his conviction,

Mark Stevens, of Salem, on the brief and orally, for the defendant.

general, on the brief and orally), for the State.

to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as impaired, see RSA 265-A:2, I(a), and the other that he drove a motor vehicle p. 2 alternative complaints: one alleging that he drove a motor vehicle while The defendant was charged with DUI under RSA 265-A:2, in two

which showed that the defendant had a blood alcohol concentration of 0.09. the police station, a second police officer administered a breathalyzer test, that the defendant was impaired and took him into custody. After arriving at

from his car, and the results of the field sobriety tests, the officer concluded

maintenance check on the Intoxylizer 5000 EN, serial [number] 68defendant’s statements, his glassy and red eyes, the smell of alcohol emanating

. . . I hereby certify that on this date I completed the preventive actually consumed two beers at the home of a friend. Based upon the or more suggests impairment). Thereafter, the defendant disclosed that he had two statements: or more suggests impairment), and one on the one-leg stand test (a score of two

test the defendant was in working order. The certificate contained the following over four suggests impairment), three on the walk-and-turn test (a score of two

laboratory employee attesting to the fact that the breathalyzer machine used to gave the defendant a score of six on the horizontal-gaze nystagmus test (a score trial, the State sought to introduce into evidence a certificate from a state crime nystagmus test; a walk-and-turn test; and a one-leg stand test. The officer persons who prepared and signed any such certificates or documents.” During The officer conducted three field sobriety tests: a horizontal-gaze

breath testing machine without the opportunity to confront the person or

the admission into evidence of “any certificates or documents regarding any agreed to take field sobriety tests. admitted to drinking one beer about thirty minutes prior to the stop. He then defendant whether he had consumed any alcohol that evening, the defendant

and

Prior to trial, the defendant gave the State notice that he would object to 010372 located at the Salem Police Department[;]

under the age of twenty-one, see RSA 265-A:2, I(b). license, but the defendant did not produce it. When the officer asked the

while he had an alcohol concentration in excess of 0.02, and while he was defendant’s eyes were glassy and red. The officer asked the defendant for his the officer approached the car, he smelled alcohol and observed that the in Salem when a police officer stopped him for a defective brake light. When

undisputed. On June 15, 2012, the defendant, who was nineteen, was driving The following facts are drawn from the record or are otherwise prepared the certificate. See U.S. CONST. amend. VI; N.H. CONST. pt. I, art.

p. 3 because he did not have an opportunity to cross-examine the person who evidence violated his rights under the State and Federal Confrontation Clauses The defendant argues that admitting the breathalyzer certificate into

certificate, is contrary to Crawford v. Washington, 541 U.S. 36 (2004), and examine the state crime laboratory employee who prepared and signed the

certificate into evidence, without providing him with the opportunity to cross-

followed. Melendez-Diaz. We have not adopted the Crawford analysis under the State that the court found him not guilty of driving while impaired. This appeal I. Confrontation Clause one. Although the record is not clear as to the second charge, the parties agree

the Federal Constitution: He contends that admitting the breathalyzer arguing that there was no probable cause for his arrest. Federal Constitutions, his argument relies upon his rights as interpreted under At the close of trial, the defendant moved to dismiss the DUI charges, defendant invokes the Confrontation Clause protections of both the State and first. See State v. Ayer, 154 N.H. 500, 504 (2006). Here, although the both the State and Federal Constitutions, we typically address his State claim v. Brooks, 164 N.H. 272, 278 (2012). When a defendant raises a claim under We review the defendant’s Confrontation Clause challenge de novo. State

equivalent to the statement from the laboratory analyst in Melendez–Diaz v. blood alcohol concentration in excess of 0.02 while under the age of twenty- address these arguments in turn. contended that the statement from the state laboratory employee was therefore, that the trial court erred in denying his motion to dismiss. We statement. This is obviously prepared for litigation.” The defendant further 15. He also argues that the officer lacked probable cause for his arrest and,

testimonial. The court overruled the objection.

motion. The court subsequently found the defendant guilty of driving with a

laboratory employee. The State countered that the statement was not certificate unless the defendant had the opportunity to cross-examine the state 2100 simulator serial [number] DR 4259 to be in proper working under the Confrontation Clause, the court should not admit the breathalyzer I found said instrument and external standard reference, Guth was held inadmissible as a testimonial statement. He argued, therefore, that Massachusetts, 557 U.S. 305 (2009), certifying a drug testing report, which

The defendant objected, arguing that “[t]he certificate . . . contains a statement

order as of February 10, 2012. available for use at a later trial.”

p. 4 objective witness reasonably to believe that the statement would be that were made under circumstances which would lead an depositions, prior testimony, or confessions;” [and] “statements

contained in formalized testimonial materials, such as affidavits,

expect to be used prosecutorially,” “extrajudicial statements similar pretrial statements that declarants would reasonably testimony that the defendant was unable to cross-examine, or

Confrontation Clause binding on the States. Michigan v. Bryant, 131 S. Ct. 4 him.” U.S. CONST. amend. VI. The Fourteenth Amendment renders the material such as affidavits, custodial examinations, prior

accused shall enjoy the right . . . to be confronted with the witnesses against The Sixth Amendment provides: “In all criminal prosecutions, the “ex parte in-court testimony or its functional equivalent—that is,

Constitution.

of those statements “in the crucible of cross-examination.” Crawford, 541 U.S. core class of testimonial statements exist.” Commonwealth v. Zeininger, 947

These formulations all share “a common nucleus,’’ and include: Constitution). We therefore turn to his argument under the Federal N.E.2d 1060, 1068 (Mass. 2011) (quotation, citation, and brackets omitted).

testimonial statements are introduced against him, and to assess the reliability definition of ‘testimonial’, the Court instructed that various formulations of this endeavored to leave for another day any effort to spell out a comprehensive overruled in part by Melendez–Diaz, 557 U.S. at 312–20. “While Crawford whether it is ‘testimonial’ or not.” State v. O’Maley, 156 N.H. 125, 131 (2007), as to whether an out-of-court statement violates the Confrontation Clause is U.S. 813, 821 (2006). Accordingly, “[t]he crucial determination under Crawford within the meaning of the Confrontation Clause. Davis v. Washington, 547 Thus, only “testimonial statements” cause a declarant to be a “witness”

at 61. Clause argument as he did not argue the standard we apply under State

under Part I, Article 15 of the New Hampshire Constitution. See Munoz, 157 Clause guarantees a defendant the opportunity to confront any person whose 1143, 1152 (2011). The Supreme Court has concluded that the Confrontation

Constitution, and the defendant does not argue that we should do so now. See

N.H. at 148 (concluding that defendant did not prevail on State Confrontation

established that admission of the breathalyzer certificate violated his rights 154 N.H. at 511. Accordingly, we conclude that the defendant has not that of Ohio v. Roberts, 448 U.S. 56 (1980). See Brooks, 164 N.H. at 282; Ayer, applicability of the Confrontation Clause test that we have adopted – namely, State v. Munoz, 157 N.H. 143, 148 (2008). Nor does he address the p. 5 The defendant relies upon Melendez-Diaz to support his argument. In

that this breathalyzer certificate is not testimonial. influence. See RSA 265-A:2, I. It does not contain any information regarding foundation for the admission of substantive evidence. We agree with the State element of the charge against him; rather, it was intended only to serve as a

for use at a later trial,” and the “sole purpose of the affidavits was to provide objective witness reasonably to believe that the statement would be available

Unlike the certificates in Melendez-Diaz, the breathalyzer certificate here

Melendez–Diaz, 557 U.S. at 324; see also Brooks, 164 N.H. at 279. establishing or proving some fact at trial,” and, therefore, are not testimonial. certificate does not establish an element of the offense of driving under the supervisor who performed the last preventive maintenance check,” this type of defendant and indeed did not directly inculpate him or prove an essential the preventive maintenance check form filled out by the forensic breath testing 265-A:12, II (Supp. 2013) enables a party to introduce into evidence “[a] copy of the offense charged. Melendez-Diaz, 557 U.S. at 310-11. Here, although RSA Clause because they were “made under circumstances which would lead an Melendez-Diaz, the drug analysis certificates were direct proof of an element of did not provide case-specific evidence against a particular defendant. In

state-law provision – was reprinted on the affidavits themselves.” Id. at 311. affidavits’ evidentiary purpose, since that purpose – as stated in the relevant omitted). The Supreme Court added that “the analysts were aware of the for the administration of an entity’s affairs and not for the purpose of analyzed substance.” Melendez-Diaz, 557 U.S. at 310-311 (quotations prima facie evidence of the composition, quality, and the net weight of the was not created for the “sole purpose” of providing evidence against the

analysts at a state laboratory were testimonial and subject to the Confrontation the drug certificates in Melendez-Diaz, is testimonial because it “bears a Melendez-Diaz, the Supreme Court held that drug testing result reports from

generally admissible, without confrontation, because they have been “created

state and federal rules of evidence, not the Confrontation Clause.” Id. State responds that the breathalyzer certificate is not testimonial because it to a statute, and bears the seal and signature of a Justice of the Peace. The solemn affirmation” from the state laboratory employee, was created pursuant

The defendant contends that the breathalyzer certificate in this case, like

Id. (quoting Crawford, 541 U.S. at 51-52 (citations and ellipses omitted)).

(quotation omitted). Under this reasoning, business and public records are

is not to prove a fact at trial, the admissibility of the records is the concern of N.H. at 279 (quotation omitted). “If the primary purpose of creating the record past events potentially relevant to later criminal prosecution.” Brooks, 164 A statement is testimonial if its primary purpose is “to establish or prove alcohol level).” Zeininger, 947 N.E.2d at 1069 (quotation omitted). The court p. 6 machine) that, in turn, supports another fact that can establish guilt (blood than does testimonial evidence: “They support one fact (the accuracy of the

breathalyzer certificates “bear a more attenuated relationship to conviction”

As the Massachusetts Supreme Judicial Court recently explained,

certificates are distinguishable from the certificates at issue in Melendez–Diaz statement, we join courts in other jurisdictions that have held that breathalyzer In concluding that the breathalyzer certificate is not a testimonial

for the admission of substantive evidence. See RSA 265-A:12, II (allowing testing machine used by the police, and therefore serves only as the foundation trial.” Melendez-Diaz, 557 U.S. at 324. Thus, the admission of the certificate results. entity’s affairs and not for the purpose of establishing or proving some fact at testimony by the police officer who conducted the breath testing as to the test

omitted)), cert. denied, 134 S. Ct. 948 (2014). evidence will not be deemed testimonial in every case.” (quotation and brackets

Clause of the Federal Constitution. into evidence did not violate the defendant’s rights under the Confrontation primary purpose of the certificate is to ensure the reliability and quality of the

nontestimonial in nature because it was “created for the administration of an were of minimal evidentiary value). The substantive evidence here was the that the certificate attesting that the breathalyzer was in working order is

establishing the accuracy of a testing device. It merely states that such not create a blanket rule of admissibility for any hearsay evidence relevant to Dyarman, 73 A.3d 565, 571 (Pa. 2013) (“The footnote in Melendez–Diaz does 311 n. 1; brackets and ellipses omitted; emphasis added); but cf. Com. v. records.’” Zeininger, 947 N.E.2d at 1069 (quoting Melendez-Diaz, 557 U.S. at regular course of equipment maintenance may well qualify as nontestimonial appear in person as part of the prosecution’s case. Documents prepared in the machine, and attests that the machine is in “proper working order.” Thus, the custody, authenticity of the sample, or accuracy of the testing device, must Rather, it describes the results of sample testing and the calibration of the that anyone whose testimony may be relevant in establishing the chain of February 2012, several months before the defendant’s June 2012 arrest. foundation for admission of substantive evidence and certificates themselves “‘Contrary to the dissent’s suggestion we do not hold, and it is not the case, observed that in Melendez–Diaz the Supreme Court recognized this distinction:

case. Notably, the breathalyzer certificate at issue here was created in documents at issue, authenticating various business records, served as the defendant’s blood alcohol concentration, nor address the specifics of his months); Brooks, 164 N.H. at 281-82 (distinguishing Melendez-Diaz because breath testing supervisor to conduct preventive maintenance check every six certificate into evidence); N.H. Admin. Rules, Saf-C 6302.04 (requiring forensic p. 7 Ojo v. Lorenzo, 164 N.H. 717, 722 (2013) (quotation omitted). “In determining caution and prudence in believing that the arrestee has committed an offense.” and trustworthy information sufficient to warrant a person of reasonable An officer has probable cause to arrest when he or she has “knowledge

committed a DUI offense. facts were sufficient to establish probable cause that the defendant had

also stresses that his speech was not slurred. The State responds that the

prudent [people], not legal technicians, act.” Id. (quotation omitted). “We will

red, he had been smoking, and that cigarette smoke can cause red eyes. He blue lights to initiate the stop. He further explains that although his eyes were speed, and responded normally and promptly when the officer activated his

factual and practical considerations of everyday life on which reasonable and

prima facie case.” State v. Newcomb, 161 N.H. 666, 669 (2011) (quotation 7

appropriately to traffic signals, stayed within his lane, drove at an average

evidence is viewed in the light most favorable to the State, the decision is

determination,” but instead “must approach the issue with a concern for the

not the amount of evidence required to sustain a conviction or to make out a

functioning properly, he was otherwise driving normally – he reacted intoxication. The defendant argues that, although his brake light was not to arrest him for DUI because he did not demonstrate sufficient signs of not overturn a trial court’s determination of probable cause unless, when the On appeal, the defendant contends that the police lacked probable cause

omitted). “We are not bound by mathematical calculations in making this

II. Probable Cause whether the police had probable cause, we review reasonable probabilities and

admitting the breathalyzer certificate, we need not address this argument.

motion. that the officer lacked probable cause to arrest him. The court denied the After the State rested its case, the defendant moved to dismiss, arguing

to support the verdict. Because we find that the trial court did not err in

prosecution. See, e.g., Zeininger, 947 N.E.2d 1070; People v. Pealer, 985 because their primary purpose is effective administration rather than

erred in admitting the breathalyzer certificate, there was insufficient evidence The defendant’s brief could be read to argue that, because the trial court

found, any case that holds that breathalyzer certificates are testimonial. Dyarman, 73 A.3d at 569. In fact, the defendant has not cited, nor have we (Idaho Ct. App. 2012); Matthies v. State, 85 So. 3d 838, 844 (Miss. 2012); 5360966, at *8 (Ark. Nov. 1, 2012); State v. Kramer, 278 P.3d 431, 437-39 N.E.2d 903, 908 (N.Y. 2013); Chambers v. State, __ S.W.3d ___, ___, 2012 WL in violation of RSA 265-A:2, I. See Newcomb, 161 N.H. at 669-70; Fisher v. p. 8 the officer with probable cause to arrest the defendant for operating his vehicle

exhibited impairment in the other two. These facts, taken as a whole, provided

Although the defendant did not exhibit impairment in one field sobriety test, he red and noticed that the odor of alcohol emanated from the defendant’s car. two beers; and the officer observed that the defendant’s eyes were glassy and

A f f i r m e d .

manifest weight of the evidence.

license when the officer requested it; he told the officer that he had consumed DALIANIS, C.J, and HICKS, CONBOY, and LYNN, JJ., concurred.

that the trial court’s determination of probable cause was not contrary to the Viewing the evidence in the light most favorable to the State, we conclude

failed two out of three sobriety tests, among other indicators of intoxication). driver’s license, police officer had probable cause to arrest when individual Transp., 11 P.3d 931, 933, 937 (Wyo. 2000) (in appeal from suspension of defendant had committed a DUI offense. The defendant failed to produce his failed two of three field-sobriety tests); cf. Smith v. State ex rel. Dept. of drinking, his eyes were bloodshot and watery, he smelled of intoxicants, and he (probable cause for arrest existed where defendant admitted that he had been State, ___ S.W.3d ___, ___, 2013 WL 1904657, at *8 (Ark. Ct. App. May 8, 2013)

contrary to the manifest weight of the evidence.” State v. Vandebogart, 139

defendant under arrest, the officer had sufficient evidence suggesting that the Contrary to the defendant’s argument, when the officer placed the

N.H. 145, 164 (1994).