Judicial District of Tolland at G.A. 19


     Criminal; Operating a Motor Vehicle While Under the Influence; Whether Admission of Breath Alcohol Test Reports Violated the Confrontation Clause Where the Defendant had no Opportunity to Cross-Examine Those Responsible for the Accuracy and Reliability of the Testing Machine. The defendant was stopped for speeding.  A police officer administered field sobriety tests, concluded that the defendant was intoxicated, and arrested him.  Subsequently, the defendant submitted to two breath alcohol tests.  The first test indicated that his blood alcohol content was 0.2217 percent, which is nearly three times the legal limit of 0.08 percent set by General Statutes § 14-227a (a) (2).  The second test, which was conducted twenty minutes later, indicated that the defendant’s blood alcohol content was 0.2173 percent.  The defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor and he sought to suppress the breath test evidence.  He argued that the breath test reports were testimonial in nature because they constituted solemn declarations offered for the purpose of establishing an essential element of the crime, that is, that his blood alcohol content was over the legal limit.  He therefore claimed that admission of the reports, in the absence of any opportunity to cross-examine the individuals who had a direct effect on their creation, would violate the confrontation clause.  Specifically, the defendant argued that the operator of the breath test machine and the analysts responsible for the machine’s maintenance and accuracy had to be subject to cross-examination in order for the state to introduce the results of the breath tests.  In support of his claim, the defendant relied in part on Melendez–Diaz v. Massachusetts, 557 U.S. 305 (2009), in which the U.S. Supreme Court ruled that the admission of a certificate of a state laboratory attesting that cocaine seized from the defendant was of a certain quantity violated the right of confrontation without the testimony of the analyst who performed the test.  Here, the trial court disagreed with the defendant’s confrontation clause argument and allowed the reports into evidence.  The defendant was convicted and he appeals, claiming the admission of the breath alcohol test reports violated his sixth amendment right to confront the witnesses offering testimonial evidence against him.