Appeals court rules in Valley felony DUI case

MAT-SU — The conviction of a Wasilla man for felony drunken driving will stand, the Alaska Court of Appeals ruled last week, because reports about the calibration of a breath-alcohol machine did not constitute testimony that would have triggered the man’s Sixth Amendment right to confront witnesses in his trial.

William Burl Hamilton had claimed in his appeal that Palmer Superior Court Judge Eric Smith should have allowed him to cross-examine people who prepared reports about the machine’s calibration.

Court of Appeals Chief Judge Robert Coats wrote the memorandum opinion and judgment for the case, upon which he and Judges David Mannheimer and Joel Bolger ruled. Memorandum decisions do not create legal precedent.

Alaska State Troopers arrested Hamilton, a Wasilla resident who was then 51, at 10 p.m., Feb. 18, 2008, near the intersection of Crusey Street and the Parks Highway, for driving under the influence, driving with a revoked license and two outstanding warrants for failure to appear on a previous DUI and DWLR charge. The troopers contacted Hamilton after he was involved in a minor vehicle collision and left the scene.

“At trial, to establish the admissibility and accuracy of Hamilton’s breath test result, the state asked the superior court to admit documents showing that the calibration of the Datamaster machine had been verified before and after Hamilton’s test, as required by regulation,” the memorandum states. “Hamilton objected to the admission of these reports, arguing that the State had not laid a proper foundation for their admission because it had not called the individuals who prepared the reports to testify.”

Hamilton argued that if the verification reports were to be admitted as evidence against him at trial, he had a right under the so-called confrontation clause to cross-examine the individuals who performed the verifications. The state countered that the verification reports were admissible without the testimony of the individuals who prepared them.

The judge agreed with the state and admitted the documents.

“Judge Smith recognized that his ruling might be affected by a Massachusetts case then pending before the United States Supreme Court,” the memorandum states. “But he concluded that in the meantime he was bound by [Abyo v. State], which held that verification of calibration reports are admissible in a driving under the influence prosecution, even if the defendant has not had the opportunity to cross-examine the individuals who created the reports.”

Abyo v. State is another appeals court decision that stemmed from a Palmer court case, over which District Court Judge John Wolfe presided.

In rejecting Andrew F. Abyo’s claim, the appeals court noted that most other courts had held that verification of calibration reports — whether admitted as business records or public records — are non-testimonial evidence.

“In adopting that majority view, we explained that verification of calibration reports lack the characteristics of “testimonial” evidence, as they are prepared routinely under a regulatory requirement, not ‘in anticipation of litigation in a particular case,’” the memorandum states.

A jury ended up convicting Hamilton of the felony drunken driving charge because he had two prior DUI convictions. He pleaded guilty to the DWLR charge.