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
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
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.
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
"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
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
For Pealer: John Cirando.
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