I was reading an article today by Mark Fulks of the Tennessee Attorneys General’s Office on his thoughts of the Confrontation Clause and DUI evidence. Mr Fulks makes an argument that DUI evidence such as the breath test printout and the breath test machine calibration certificate does not fall under the Confrontation Clause as set out in Crawford v. Washington and Melendez-Diaz .Crawford identified when evidence was testimonial which triggered a Confrontation Clause analysis.Fulks points out the calibration certificates should be admissible because they are not testimonial in nature.

Respectfully , I disagree.



In State v. Sensing, 843 S.W.2d 412 (Tenn. 1992), the Tennessee Supreme Court set forth

the proper “foundation to be laid for the admission of evidentiary breath tester results.” Id. at 416.

The court held that a testing officer must be able to testify

(1) that the tests were performed in accordance with the standards and operating

procedure promulgated by the forensic services division of the Tennessee Bureau of

Investigation, (2) that he was certified in accordance with those standards, (3) that the

evidentiary breath testing instrument was certified by the forensic services division,

was tested regularly for accuracy and was working properly when the breath test was

performed, (4) that the motorist was observed for the requisite 20 minutes prior to the

test, and during this period, he did not have foreign matter in his mouth, did not

consume any alcoholic beverage, smoke, or regurgitate, (5) . . . . evidence that he

followed the prescribed operational procedure, and (6) be able to identify the printout

record offered in evidence as the result of the test given to the person tested.


Here’s the point.Sensing requires the machine be tested for accuracy. The 90 day accuracy checks are not routine maintenance , but are conducted to comply with the holding in Sensing when the evidentiary threshold was lowered to not require expert testimony by police officers in DUI breath test cases.

Right now there is no clear decision , however the U.S. Supreme Court is taking up another Confrontation Clause up this term. Stay tuned.