By Daniel Wiessner

ALBANY, N.Y., Feb 19 (Reuters) - A trial court did not violate the constitutional rights of a defendant who wasn't given an opportunity to cross-examine the authors of breathalyzer documents used at his trial, the Court of Appeals has ruled.

In a 4-1 decision, the court on Tuesday upheld the 2009 DWI conviction of Robert Pealer.

Pealer had argued that he was entitled under the Confrontation Clause to cross-examine the officials who created the documents, which pertained to the breathalyzer's accuracy.

The confrontation clause bars the admission of testimonial statements of witnesses who do not appear at trial, except in limited circumstances.

The court disagreed with Pealer, finding the documents were nontestimonial because they didn't directly incriminate Pealer or prove an essential element of the charges against him.

"All three records simply reflected objective facts that were observed at the time of their recording in order to establish that the breathalyzer would produce accurate results, rather than to prove some past event," Judge Victoria Graffeo wrote for the court.

Police in Yates County in 2008 received an anonymous phone call claiming that a man who was possibly intoxicated had left a local restaurant in his car, according to the ruling.

An officer noticed Pealer's car, which matched the caller's description, driving erratically. The officer pulled him over for having a college sticker on his rear windshield, a violation of state traffic laws.

Pealer was arrested and a breathalyzer test showed his blood alcohol level to be 0.15, nearly twice the legal limit, according to the decision.

He was charged with felony DWI because he had already twice been convicted of felony drunk driving, the court said.

At trial, the prosecution admitted into evidence two documents designed to show that the breathalyzer used on Pealer was in proper working order. A third document stated that the "simulator solution" used in the device had been analyzed and approved for use by the state police.

Pealer moved to cross-examine the technicians who calibrated the breathalyzer and authored the reports. A Yates County Court judge denied the request.

A jury in 2009 found Pealer guilty and he was sentenced to 2-1/2 to 7 years in prison. He appealed, arguing that the trial court erred in denying his bid to cross-examine the authors of the breathalyzer documents.

The Appellate Division, Fourth Department, in 2011 unanimously upheld Pealer's conviction.

BUSINESS RECORDS

The Court of Appeals on Thursday affirmed, saying that documents pertaining to the routine inspection, maintenance and calibration of breathalyzer machines should be viewed as business records and were nontestimonial in nature.

Judge Eugene Piggott on Thursday agreed that the documents did not violate Pealer's confrontation rights, but wrote in dissent that Pealer should never have been pulled over in the first place.

"While having a sticker on the car's back window may have transgressed (state law), this is the type of school pride that is commonly exercised by New York drivers every day and, I suspect, the statute is rarely, if ever, enforced," Pigott wrote.

Pealer's attorney, John Cirando, said he was disappointed with the decision.

Yates County District Attorney Jason Cook said the case was the first in the state to consider confrontation rights with regard to breathalyzer documents.

"Clearly the people who calibrate these machines do so without regard to ... guilt or innocence," Cook said on Tuesday.

The case is the People v. Robert Pealer, New York State Court of Appeals, No. 9.

For the prosecution: Yates County District Attorney Jason Cook.

For Pealer: John Cirando.

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