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State v. Walker

August 9, 1996

STATE OF WASHINGTON, APPELLANT
v.
MICHAEL J. WALKER, RESPONDENT. STATE OF WASHINGTON, RESPONDENT V. GREGORY E. LEWIS, APPELLANT



Superior Court of Pierce County. Superior Court Docket No. 93-2-10734-5/94-1-00337-4. Date Filed In Superior Court: July 29, 1994/December 16, 1994. Superior Court Judge Signing: Frederick Hayes/Terry Sebring. District Court Name: District Court #1 of Pierce County. District Court Docket No. 927176436/937249469. Date Filed In District Court: Oct. 18, 1993. District Court Judge Signing: James Heller/Rudy Tollefson.

Petition for Review Denied January 8, 1997,

Written By: Seinfeld, C.j. Concurred IN By: Houghton, A.c.j., Turner, J.

The opinion of the court was delivered by: Seinfeld

SEINFELD, C.J. -- Michael J. Walker and Gregory E. Lewis contend that a trial court may not admit DataMaster breath test results as a business record where the defendant has requested, but the State has failed to produce, the technician responsible for maintaining the DataMaster machine. Walker and Lewis were convicted at separate trials of driving under the influence (DUI). Each had requested, pursuant to CrRLJ 6.13(c), the technician's presence at trial. As that technician had retired, the State produced another qualified technician whose testimony provided the foundation to admit the test results as a business record. We conclude that CrRLJ 6.13(c) does not provide the exclusive procedure for the admission of DataMaster test results and that the admission of the test results, under these circumstances, did not violate the defendants' Sixth Amendment confrontation rights. Accordingly we affirm Lewis's conviction and reinstate Walker's.

FACTS

The State separately tried Walker and Lewis in district court for driving while under the influence. RCW 46.61.502. To prove its case, the State sought to introduce the results of BAC Verifier DataMaster breath tests.

Before trial, Walker and Lewis requested, under CrRLJ 6.13(c), *fn1 the presence at trial of Anne Jacobson, the technician responsible for performing the quality assurance procedure on the DataMaster machines. Instead, the State produced the certified "BAC Verifier DataMaster Quality Assurance Procedure" documents (QAP documents) for both machines *fn2 and Officer Storey, Jacobson's replacement.

The State made an offer of proof that Storey was the custodian of the records prepared by Jacobson and would testify as to the contents of the QAP documents that Jacobson had completed. The defendants opposed admission of the documents. They contended that under CrRLJ 6.13(c), the State, in response to their demand, must produce the technician who performed the quality assurance procedure. The defendants did not argue that Storey was not a proper custodian of the document or that, absent CrRLJ 6.13, the business record exception would not be applicable.

The trial court admitted the QAP documents under the business records exception to the hearsay rule; the defendants were convicted; and each appealed to superior court. *fn3 In Walker's case the superior court reversed the conviction, holding that the district court erred in admitting the test results without Jacobson's presence. A different superior court department affirmed Lewis's conviction. We accepted discretionary review of the State's challenge to the reversal of Walker's conviction and Lewis's appeal and consolidated the two matters for review.

A. Use of Business Records Exception

To prove that a defendant was operating a vehicle while under the influence, the State may introduce into evidence an analysis of the defendant's breath showing the alcohol concentration. RCW 46.61.502(a); RCW 46.61.506(1) and (2); CrRLJ 6.13(c). Such evidence is admissible, however, only if the test was performed in accordance with statutory requirements. RCW 46.61.506(3). The State must show that (1) the machine was functioning correctly; (2) the correct chemical solution was correctly used; (3) the test operator was qualified and performed the test correctly; and (4) the results are accurate. State v. Wittenbarger, 124 Wash. 2d 467, 489, 880 P.2d 517 (1994).

The defendants here do not challenge the administration of the test. They challenge only the lack of foundation evidence showing that the DataMaster machine was functioning correctly at the time of the test.

To lay such a foundation, the State must show that it performed a quality assurance procedure on the machine within 12 months of its use to test the defendant's breath. Wittenbarger, 124 Wash. 2d at 489-90; State v. Straka, 116 Wash. 2d 859, 870, 810 P.2d 888 (1991); WAC 448-13-110. A QAP document, certified by the technician performing the procedure, is sufficient to prove that the State correctly performed the procedure. Wittenbarger, 124 Wash. 2d at 473; State v. Watson, 51 Wash. App. 947, 950, 756 P.2d 177 (1988).

If the defendant does not request the presence of the technician who tested the machine, CrRLJ 6.13(c) allows the trial court to admit a "BAC verifier DataMaster Certification" without foundation testimony. State v. Sosa, 59 Wash. App. 678, 682, 800 P.2d 839 (1990). The certification states that the machine was in "proper working order" on the date it was examined. But Walker and Lewis contend that when a defendant requests the technician's presence, as they ...


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