Bohsancurt v. Tucson City Prosecutor's Office

Citation: Not availableDocket: 2 CA-CV 2005-0117

Court: Court of Appeals of Arizona; February 27, 2006; Arizona; State Appellate Court

Original Court Document: View Document

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The Court of Appeals of Arizona reversed and remanded a superior court ruling regarding the admissibility of maintenance and calibration records for the Intoxilyzer 5000 breath-testing machine used in a DUI case against Kyle Bohsancurt. The superior court had determined these records to be testimonial under the Sixth Amendment’s Confrontation Clause, based on the precedent set in Crawford v. Washington. Bohsancurt argued that without the opportunity to cross-examine the author of these records, their admission would violate his constitutional rights. The city court magistrate initially ruled the records as non-testimonial and admissible. However, the superior court accepted Bohsancurt's challenge, deeming the records inadmissible without cross-examination. The appellate court found that the records do not meet the criteria of being testimonial and are admissible under public records and business records exceptions to hearsay. The court emphasized the need for further proceedings following their reversal of the lower court's decision.

The state contends that the lower court mistakenly determined that the periodic maintenance records of the Intoxilyzer 5000 are considered testimonial under the standards established in Crawford. This issue pertains to the superior court's interpretation of Crawford, which is assessed de novo. While the admissibility of evidence under hearsay exceptions is reviewed for abuse of discretion, violations of the Confrontation Clause are also reviewed de novo.

In Crawford, the Supreme Court aimed to resolve tensions between the Sixth Amendment’s Confrontation Clause and hearsay exceptions, overruling Ohio v. Roberts, which allowed the admission of statements from unavailable declarants if they had sufficient reliability. The Crawford decision criticized the reliability standard as vague and ineffective in protecting against confrontation violations. The Court identified two primary concerns of the Framers regarding the Confrontation Clause: the rejection of civil-law criminal procedures that relied on ex parte examinations and the prohibition of admitting testimonial statements from witnesses not present at trial unless they were unavailable and had been subject to prior cross-examination.

Crawford introduced a distinction between 'testimonial' and 'nontestimonial' evidence, asserting that the Confrontation Clause applies specifically to 'witnesses' who provide testimony. The Court established a strict rule that testimonial evidence from absent witnesses is inadmissible unless the witness is unavailable and the defendant had an opportunity for cross-examination. Although the Court did not provide a comprehensive definition of 'testimonial,' it outlined a core class including formal statements like affidavits or prior testimony, statements made under circumstances indicating they would be used in prosecution, and police interrogation statements.

The Court determined that 'testimonial' evidence includes prior testimony from preliminary hearings, grand juries, former trials, and police interrogations, as these practices are closely related to the abuses addressed by the Confrontation Clause. Most hearsay exceptions involve statements that are inherently non-testimonial, such as business records or statements made in furtherance of a conspiracy. The Court emphasized that nontestimonial hearsay allows states flexibility in developing their hearsay laws without Confrontation Clause restrictions.

The inquiry shifts to whether Quality Assurance Records (QARs) should be classified as testimonial evidence, thus requiring cross-examination of their authors under the Crawford decision. QARs are created under Arizona Administrative Code R9-14-404, which mandates quality assurance programs for breath-testing devices used in DUI cases. These records, generated by criminalists at the Tucson Police Department (TPD), serve as foundational evidence for admitting breath test results in prosecutions, provided five foundational requirements are met, including proof of the device's proper operating condition through maintenance records.

Despite changes in agency oversight, the critical aspect is the agency conducting calibration tests and the purpose of the records, which is performed by TPD. The QARs feature standard language filled out by the criminalist, and the state argues they do not fall into the testimonial categories defined in Crawford. Instead, the state suggests they might belong to a more ambiguous category of testimonial statements, which Crawford does not explicitly define.

The QARs (Quality Assurance Records) in DUI cases are introduced to meet the fifth foundational requirement under 28-1323. The state contends that these maintenance records are non-testimonial, representing mere data transfer from an Intoxilyzer 5000 printout to a preprinted form. Following the Crawford decision, various jurisdictions have debated what constitutes 'testimonial' evidence, particularly for evidence that does not fit neatly within the Supreme Court's 'core class.' A majority of courts have determined that similar quality assurance records for breath-testing machines are non-testimonial, classifying them as business records made in the ordinary course of business, thus fitting an exception to the Crawford ruling. These rulings referenced legislation or administrative rules mandating the maintenance of records for breath-testing devices, emphasizing that such records are not created in anticipation of litigation but for compliance and accuracy assurance. Courts have also affirmed that these records meet the business record criteria under Rule 803(6), which requires that the records be made contemporaneously by individuals with firsthand knowledge during regular business activities, maintained according to standard practices, and verified by a qualified custodian or witness. However, records may be deemed inadmissible if their source or preparation raises trustworthiness concerns. The term 'business' encompasses various entities, irrespective of profit motives.

The Intoxilyzer 5000 machines are required to be tested and recorded every thirty-one days, irrespective of their use in DUI arrests, as mandated by R9-14-404. The records, known as Quality Assurance Records (QARs), serve to document the periodic maintenance and calibration results of these machines. Although Bohsancurt argues that these records should not qualify as business records due to potential bias from their production by the State for prosecution, this claim is countered by the fact that the calibration is performed by technicians who do not have a vested interest in the outcomes. Other courts have supported the view that these records, being factual outputs from a scientific process and devoid of subjective opinions, maintain their trustworthiness. 

The court concludes that the QARs qualify as business records under Rule 803(6) of the Arizona Rules of Evidence. Additionally, the classification of these records as 'public records' under another statute does not negate their status as business records. Moreover, courts have allowed the admission of calibration records without requiring testimony from their preparers, reasoning that such records are not considered testimonial evidence against defendants, as they do not bear testimony but rather provide foundational information.

The courts' reasoning aligns with the historical protections emphasized in Crawford, focusing on the historical practice of questioning witnesses by justices of the peace, which became routine in the 16th century. This practice, which involved officials with investigative and prosecutorial roles, raised concerns about the reliability of evidence, particularly inculpatory statements that warranted cross-examination. The court determined that calibration records, consisting of abstract machine output without a connection to a specific defendant, do not fall under the category of evidence the Framers sought to protect against. Consequently, statements regarding a breath test machine's operational status are deemed non-testimonial. In contrast, other cases cited by Bohsancurt involved reports that were directly incriminating, indicating that those laboratory reports required the presence of the officer who conducted tests, per Crawford. However, calibration results do not pertain to any specific case or defendant and are considered routine documentary evidence, similar to other non-testimonial laboratory reports established in precedents.

In Denoso v. State, the court determined that an autopsy report detailing the victim’s physical characteristics and cause of death is not considered testimonial evidence under the standards set by Crawford, as it does not fall into categories of prior testimony or statements made at legal proceedings. The case does not address specific issues previously examined in other cases. The defendant, Bohsancurt, referenced United States v. Cromer, arguing that a declarant’s awareness of a statement's potential use at trial is key to determining whether it is testimonial. However, Cromer clarifies that the focus is on whether the declarant intends to testify against the accused in a particular case. In this context, QA specialists preparing Quality Assurance Reports (QARs) do not operate with any intent to implicate specific defendants, as these reports are generated as mandated by administrative rules regardless of their use in legal proceedings. Furthermore, the presence of an affidavit does not render the QARs testimonial if it does not contain statements directed against a specific defendant. Courts have ruled that calibration records with affidavits do not become testimonial if they lack direct accusations against any individual. The court also noted that while Crawford mentions affidavits as potentially testimonial, it specifically refers to affidavits that are akin to in-court testimony, which does not apply here. Consequently, the court concluded that QARs are classified as business records and do not contain testimonial evidence against individual defendants like Bohsancurt.

The Sixth Amendment permits the admission of Quality Assurance Records (QARs) even if the QA specialist who prepared them is not present in court for cross-examination. The QARs qualify as business records, thus fitting within an exception to the hearsay rule, despite challenges regarding their admissibility. Bohsancurt, along with an amicus curiae, argues that the QARs should be excluded under Rule 803(8), which specifically pertains to public records and excludes reports from law enforcement personnel in criminal cases. They cite case law indicating that records excluded under Rule 803(8)(B) cannot be admitted as business records through a different classification. However, it is acknowledged that documents may be both public records and business records. The court must evaluate whether the QARs, despite being labeled public records, are inadmissible under Rule 803(8)(B). Bohsancurt references United States v. Oates, which ruled against the admissibility of reports from law enforcement personnel, but the court also notes that State v. Best rejected this interpretation, clarifying that the exclusion in Rule 803(8)(B) primarily targets observations by police in adversarial contexts. The Best case allowed a laboratory report from a fingerprint examiner, asserting that such routine tasks are reliably conducted and admissible under both business and official records exceptions to the hearsay rule.

The text critiques the Oates decision regarding the admissibility of evidence under Rule 803(8)(B). It emphasizes the distinction between adversarial situations, such as arrests, and routine police laboratory activities, arguing that calibration records generated by QA specialists are not subject to the same exclusions as observations made by law enforcement during investigations. Citing various cases, including United States v. Wilmer and State v. Meza, it asserts that these calibration reports are akin to routine public records rather than adversarial observations. The court concludes that the QA specialists' work is a nonadversarial task, allowing these reports to qualify as business records and public records, thus admissible despite the hearsay rule. Consequently, the superior court's reversal of the city court magistrate's denial of a motion in limine is deemed erroneous, leading to a reversal of that ruling and a remand for further proceedings.