At trial, the State offered both Ramirez’s breath test results as well as an official certificate of compliance verifying routine inspection of Officer Reese’s DataMaster. The certificate was issued by the Indiana State Department of Toxicology. It recited that the DataMaster in question had been examined on August 12, 2008, that the instrument was in good operating condition, and that it satisfied the accuracy requirements established by the Department of Toxicology Regulations. The document was signed by a director at the Department of Toxicology. The certificate further read, “This Letter of Certification, issued by the State Department of Toxicology, must be kept on file in the office of the Clerk of the Circuit Court and may be duplicated as needed for use in Court.” . . . Officer Reese appeared at trial to testify for the State and authenticate Ramirez’s breath test results, but the official who had examined the DataMaster and completed the inspection certificate was not present.
Ramirez objected to the admission of the inspection certificate and the test results. He argued that he was unable to cross-examine the person who prepared the certificate, so introduction of the document violated his Sixth Amendment confrontation rights. He further argued that since the certificate was a foundational requirement for the breath test results, his inability to cross-examine the certifier precluded admission of the DataMaster printout. The trial court overruled Ramirez’s objections and admitted both exhibits.
. . . .
This is the first time since Melendez-Diaz that we have reexamined whether breath test inspection certificates are testimonial and subject to the confrontation right, but we see no reason that Melendez-Diaz disturbs this Court’s holdings in Johnson, Jarrell, Rembusch, and Napier. To the contrary, the foregoing language from the Melendez-Diaz majority appears to leave our prior decisions intact. The majority rejects the proposition that anyone involved in establishing the “accuracy of the testing device” must testify in person. It further states that “documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.” We acknowledge that this language is not decisive. Melendez-Diaz does not hold that routine calibration records are always nontestimonial. But at a minimum it leaves the question unresolved and demands the same type of scrutiny that we have undertaken since Crawford. We analyzed the nature of inspection certificates in Johnson, Jarrell, Rembusch, and Napier, and we believe our conclusion that the certificates are nontestimonial remains valid today. The certificates do not comprise ex parte in-court testimony or its functional equivalent. They are not formalized testimonial materials like sworn affidavits. Moreover, while the certificates contemplate use in criminal trials, they are completed in advance of any specific alleged drunk-driving incident and breath test administration and are not created for the prosecution of any particular defendant. We thus reaffirm our position that certificates verifying routine inspection of breath test instruments are nontestimonial. Jurisdictions that have addressed this question post-Melendez-Diaz have generally reached the same conclusion.
RILEY, J., concurs.
BARTEAU, S.J., concurs in result with separate opinion:
I read the Supreme Court’s decision in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), as leading to a result opposite from the result reached by the majority. The certificates of analysis in Melendez-Diaz, and the Certificate in the current case, are functionally identical to live, in-court testimony. . . . .
. . . .
Although I would hold that the trial court erred by admitting the Certificate and the DataMaster test results, I conclude that in this case the error was harmless.