United States v. Foster (829 F. Supp. 2d 354, 2011)

MEMORANDUM OPINION

MICHAEL F. URBANSKI, District Judge.

Defendant David L. Foster (“Foster”) was charged with speeding on the Blue Ridge Parkway and a violation of 36 C.F.R. § 4.23(a)(1), which prohibits operating or being in actual physical control of a motor vehicle while under the influence of alcohol to a degree that renders the operator incapable of safe operation. A trial was held on April 20, 2011. At trial, Foster moved to dismiss the DUI charge, objecting to the introduction of two government exhibits: (1) Government Exhibit 1 (“Ex. 1”), the Certifícate of Instrument Accuracy for the Intox EC/IR II used to perform Foster’s breathalyzer test; and (2) Government Exhibit 2 (“Ex. 2”), the Certificate of Blood Alcohol Analysis. At the conclusion of the evidence, the court took the DUI charge under advisement to allow the parties to brief the issue of the admissibility of the two exhibits. Foster was found guilty of speeding, and judgment was entered on this charge on April 21, 2011. See United States v. Foster, No. 7:11po099 (W.D.Va. Apr. 21, 2011).

The two issues currently before the court are: (1) whether the government’s exhibits concerning the accuracy of the Intox EC/IR II and the results of the breath test administered to Foster are admissible under the Constitution and pursuant to the Federal Rules of Evidence; and (2) whether the evidence establishes beyond a reasonable doubt that Foster was “under the influence of alcohol ... to a degree that rendered] [him] incapable of safe operation” of his motor vehicle on the night in question. 86 C.F.R. § 4.23(a)(1). Controlling Supreme Court precedent plainly establishes that the evidence introduced by the government does not violate the defendant’s rights under the Confrontation Clause. But the government has not laid a proper foundation for the admission of the Certificate of Instrument Accuracy pursuant to the Federal Rules of Evidence. Ex. 1 is therefore not admissible. Nor has the government otherwise established that this particular Intox EC/IR II breathalyzer, which generated the reading on the Certificate of Blood Alcohol Analysis, was properly maintained and operating accurately at the time of the test, as required by 36 C.F.R. § 4.23(c)(4). So while Ex. 2 meets the minimal authentication requirement for admission into evidence, the blood alcohol reading set forth on the Certificate of Blood Alcohol Analysis is given little weight, because the government has failed to' establish that the machine was functioning properly on the night in question.

The court has carefully considered the evidence adduced at trial, including Foster’s statements and actions on the night in question and his performance on the field sobriety tests. Given the specific facts and circumstances of this case, the court finds the government has not met its burden of proving Foster is guilty of being under the influence of alcohol to a degree that rendered him incapable of safe operation of his vehicle. As such, the court finds Foster NOT GUILTY of violating 36 C.F.R. § 4.23(a)(1).

I.

On the evening of April 3, 2011, Rangers Smith and Lyon stood near the Roanoke River Overlook parking lot on the Blue Ridge Parkway, near milepost 114.9, in the Western District of Virginia. The rangers were monitoring traffic using their hand-held LIDAR laser units. At approximately 7:19 p.m., Ranger Lyon saw a dark green pick-up truck heading northbound at what the ranger believed to be a rate of speed faster than the 35 mph posted speed limit. The driver was traveling downhill just past an area where the speed limit changes from 45 mph to 35 mph. Ranger Lyon testified that he did not observe the vehicle swerve or weave in any respect as it traveled towards him. Using his LI-DAR unit, Ranger Lyon determined that the vehicle was traveling 50 mph.

Ranger Lyon stepped out into the middle of the driver’s lane of travel and motioned for the driver to stop. Foster, the driver of the vehicle, stopped without difficulty. Ranger Lyon approached the driver’s side window and showed Foster the LIDAR unit that had clocked his speed at 50 mph. Ranger Lyon testified that Foster was wearing dark sunglasses at the time. When Foster removed his sunglasses, Ranger Lyon observed that Foster had glassy, watery eyes that appeared to be bloodshot, and noted a strong odor of alcohol. Ranger Lyon also testified he found Foster’s speech to be slurred. Ranger Lyon directed Foster to pull over into the Roanoke River Overlook parking lot. When questioned by defense counsel about why he allowed Foster to drive his vehicle into the parking lot when he suspected Foster had been drinking, Ranger Lyon replied, “All I could tell was that he had been consuming alcohol.... I did not know how much.”

Foster pulled over approximately 30 to 40 feet into the parking lot and parked in a parking space without difficulty. Ranger Lyon again approached the driver’s side window. Foster produced his license and registration without difficulty. Ranger Lyon asked Foster if he had been drinking. Foster replied that he and his passenger had been “pre-gaming” prior to a race at the speedway in Martinsville, Virginia, but Foster claimed that he had had nothing to drink since the race began. Ranger Lyon asked if there were any open containers in the vehicle, and the passenger pointed to a 24-ounce can of beer on the floorboard of the passenger’s side. There was no open container on the driver’s side of the vehicle. Ranger Lyon motioned for Ranger Smith to come and assist him with the traffic stop. Ranger Smith approached the passenger, and Ranger Lyon asked Foster to step out of the vehicle and perform field sobriety tests.

Foster exited the vehicle' without difficulty. Ranger Lyon then administered a series of field sobriety tests, beginning with the horizontal gaze nystagmus test. Ranger Lyon testified that six out of a total of six possible clues were indicated. The test revealed a lack of smooth pursuit in both eyes, nystagmus (rapid eye movement) at maximum deviation in both eyes, and nystagmus prior to 45 degrees in both eyes. Ranger Lyon testified that based on his training and experience, this test confirmed that there was a probability Foster had been consuming alcohol.

Ranger Lyon then administered a walk- and-turn test. Ranger Lyon instructed Foster to take nine steps heel-to-toe along a parking spot line, turn, and take nine steps heel-to-toe back, all while keeping his arms at his side. Ranger Lyon testified that Foster took the appropriate number of steps both out and back, but that he failed to touch his heel to his toe leaving a “gap” on step number 6 during the first set, and on steps 2, 5, 7 and 8 during the second set. He also failed to keep his arms at his side. Ranger Lyon testified that while he was giving Foster the instructions, Foster had a difficult time maintaining his balance. Yet Foster did not fall off of the parking spot line, miss a step or otherwise lose his balance during the test. He also properly completed his turn.

Foster next performed the one-leg stand test. Ranger Lyon instructed him to raise the foot of his choice six inches off the ground, point his toe, keep his hands at his side, and maintain this position for thirty-seconds, counting “one, one thousand; two, one thousand.” Foster was able to balance in this position without putting his foot down and count out loud as instructed for 37 seconds. However, Ranger Lyon testified that Foster raised his arms over six inches and swayed to maintain balance during the test. Ranger Lyon testified that the purpose of this test is to determine a driver’s balance, and on cross-examination, he admitted that of the field sobriety tests, this is the one with which people have the most trouble.

Ranger Lyon placed Foster under arrest and transported him to the Vinton Police Department. Ranger Smith drove a separate vehicle. Foster and the rangers had to wait for someone from the Vinton Police Department to come and open the building for them. Ranger Smith testified that while they were waiting, he noticed Foster “was having a little bit of difficulty standing and he stumbled a little bit.” Prior to administering a breath test, Ranger Smith observed Foster during a mandatory twenty minute waiting period. Ranger Smith performed a breath test using the Intox EC/IR II at 9:05pm. The test was administered nearly an hour after Foster was transported to the Vinton Police Department.

Ranger Smith testified that this was the first time he administered a case-related breath test using the Intox EC/IR II. However, he had been trained in its use and in the course of that training had conducted multiple tests and taken numerous samples. Ranger Smith testified that the machine first ran a diagnostic test to ensure there was no detectable alcohol in the air. Foster’s breath sample was then taken, and the machine produced a Certificate of Blood Alcohol Analysis indicating Foster’s blood alcohol concentration (“BAC”) was .12 grams per 210 liters of breath.

At trial, the government introduced as Ex. 1 a Certificate of Instrument Accuracy for the machine used to perform Foster’s test, which was signed by Melissa Kennedy, Section Supervisor, Virginia Department of Forensic Science. This document bears no reference to Foster and concerns the accuracy of the breathalyzer itself. Ex. 1 indicates that the specific breathalyzer machine used to perform Foster’s test was certified as of March 10, 2011 as meeting “all requirements for accuracy and performance established by the Department of Forensic Science.” Ranger Smith testified he has no training or experience with the maintenance of the machine, he does not know Melissa Kennedy, he does not know whether she actually performed the recertification test and whether the machine was properly calibrated at the time, and that he understands from his training that if the machine had not been certified it would produce an error reading.

Ex. 2, the second document tendered by the government, is Foster’s alcohol concentration results as calculated by that machine.

At trial, Foster objected to both exhibits, arguing they are hearsay and violate his rights under the Confrontation Clause, citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). Foster claimed that although Ranger Smith administered the test and was available for questioning, the individual who performed maintenance on the Intox EC/IR II was not present at trial or otherwise made available for questioning. Thus, Foster argued he had no one to cross-examine as regards the accuracy of the machine. The court admitted the evidence subject to Foster’s objections. Foster then moved to dismiss the DUI charge, claiming the government had not proven that he was under the influence of alcohol to a degree that made him incapable of safe operation. 36 C.F.R. § 4.23(a)(1).

II.

The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.... ” U.S. Const, amend. VI. The Supreme Court held in Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), that the Sixth Amendment Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination.”

In Melendez-Diaz v. Massachusetts, the Supreme Court addressed the issue of whether a certifícate containing the results of forensic analysis is a testimonial statement invoking a defendant’s Sixth Amendment right to confrontation. 557 U.S. 305, 129 S.Ct. 2527. During Melendez-Diaz’s trial, the prosecution submitted three certificates of analysis, which documented that the substance seized in connection with defendant’s arrest contained cocaine. Id. at-, 129 S.Ct. at 2531. Melendez-Diaz objected to the admission of the certificates, asserting Crawford required the analysts to testify in person. Id. The certificates were admitted over defendant’s objection and the jury found Melendez-Diaz guilty. Id. On appeal, Melendez-Diaz argued admission of the certificates violated his Sixth Amendment right to confront witnesses testifying against him. Id. In a 5-4 decision, the Supreme Court held that the certificates at issue were essentially affidavits, which fall “within the ‘core class of testimonial statements’ ” described in Crawford. Melendez-Diaz, 557 U.S. at -, 129 S.Ct. at 2532. Thus, “[ajbsent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, [Melendez-Diaz] was entitled to ‘be confronted with’ the analysts at trial.” Id. (quoting Crawford, 541 U.S. at 54, 124 S.Ct. 1354).

In the instant case, Foster objects to the admission of both the Certificate of Instrument Accuracy (Ex. 1) and the Certificate of Blood Alcohol Analysis (Ex. 2). Foster argues these documents are testimonial in nature and the government should have been required to call a witness from the Department of Forensic Science to testify as to the accuracy of the Intox EC/IR II. It is undisputed that Melissa Kennedy, the person who signed the Certificate of Instrument Accuracy, was not available to testify at trial and that Foster had no prior opportunity to cross-examine her, which Foster argues violates his Sixth Amendment rights. On the other hand, Ranger Smith who administered the breath test and signed the Certificate of Blood Alcohol Analysis as “breath test operator” was available to testify at trial and was cross-examined by Foster. But Ranger Smith admitted that he has nothing to do with the testing or maintenance of the Intox EC/IR II. Thus, Foster maintains the Certificate of Blood Alcohol Analysis also is not admissible, because no one was available to testify that the BAG reading set forth on the certificate is an accurate one.

III.

A. Certificate of Instrument Accuracy, Ex. 1.

1. Admissibility pursuant to the Sixth Amendment to the United States Constitution.

Courts in the Eastern District of Virginia have had occasion to consider the admissibility of certificates verifying accuracy of testing equipment and have consistently held that such evidence is non-testimonial in nature and does not violate the Confrontation Clause. See United States v. Christie, No. 3:09mj433, 2009 WL 4499124, at *4 (E.D.Va. Dec. 3, 2009) (‘