Commonwealth v. Dyerman, 2011 Pa. Super. 245 (2011)

Dyerman was stopped while driving and arrested for driving under the influence of alcohol.  Once taken back to the police station, she took a breathalyzer test and was found to have a blood alcohol content of .117%, well over the legal limit.  She was charged with DUI and brought to trial.

At trial, the Commonwealth called the arresting officer, who testified to the stop and to the breathalyzer test he performed.  The Commonwealth then moved for the admission of the calibration and accuracy logs for the Intoxilyzer 5000 EN, which is the device that the officer used to test Dyerman's BAC.  She  objected to the admission of the calibration logs, claiming that pursuant to the United States Supreme Court’s decision in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), admission of the test logs would violate her rights under the confrontation clause of the Sixth Amendment of the United States Constitution since the officer was not the individual who performed the calibration tests of the device. The trial court overruled Appellant’s objection and admitted the calibration logs.  She was convicted and appealed.

Significant in Crawford, Melendez-Diaz, and Barton-Martin, the Superior Court noted, was the “testimonial” nature of the statements which the prosecution sought to admit: the statements were prepared in anticipation of litigation of a particular case, and were necessary to prove an element of the crime charged. For example, in Melendez-Diaz the challenged certificate was used to prove that the seized substance was cocaine, and in Barton-Martin the proffered test result was used to prove that the defendant’s BAC was .16% or higher. A prior statement that is not “testimonial,” however, does not implicate the confrontation clause and is admissible, so long as it falls within a hearsay exception.

The Court then concluded that in the case sub judice, unlike in Barton-Martin, the individual who actually performed Appellant’s BAC analysis testified as to the accuracy of that test and as to the specific results received with regard to Appellant. The calibration logs were admitted into evidence to establish the chain of custody and accuracy of the device used to test Appellant’s BAC; they were not created in anticipation of Appellant’s particular litigation, or used to prove an element of a crime for which Appellant was charged. Therefore, although relevant evidence, the logs were not “testimonial” for purposes of the protections afforded by the confrontation clause, as contemplated by Crawford, Melendez-Diaz, and Barton-Martin.

On this basis, the Court held that the calibration logs were not testimonial, and the defendant's Confrontation Clause rights had not been violated.

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