Breath-test machine certificates admissible

Accuracy not reliant on live testimony

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Accuracy and calibration certificates for breath-test machines are admissible in court without live testimony from the person who prepared them, the state Supreme Court has ruled.

That means the admission of breath-test documents in absentia does not violate a defendant's right to be confronted by his or her accuser.

The court in a unanimous decision affirmed the state Superior Court's ruling in a DUI case that breath-test machine certificates are "not testimonial," finding that the defendant's right to confrontation via the Sixth Amendment was not infringed.

According to Justice J. Michael Eakin, who wrote for the high court in Commonwealth v. Dyarman, while the certificates were relevant evidence, they were not constructed for the purpose of accusing the defendant.

"We conclude the calibration and accuracy certificates were nontestimonial in nature because they were not prepared for the primary purpose of providing evidence in a criminal case, and their admission into evidence did not violate appellant's confrontation clause rights," Justice Eakin said.

Justice Thomas G. Saylor joined the majority and offered a concurring statement in which he noted that while he agreed with the court's ruling, "It is fair to point out that calibration and accuracy testing of the machines should be viewed as being derivative of" using them in providing evidence in criminal cases.

According to the opinion, defendant Mary A. Dyarman was stopped Nov. 28, 2009, in her vehicle by police in Cumberland County, who determined that she was driving under the influence of alcohol.

After her arrest and transportation to a DUI booking station, Ms. Dyarman was given a breath test by corrections officer Rodney Gsell to determine her blood alcohol content. Her blood alcohol content registered at .117 percent and she was formally charged with two counts of DUI.

At a bench trial, the state presented the testimony of Mr. Gsell and moved to admit the calibration and accuracy certificates for the device used to test Ms. Dyarman's blood alcohol content; however, Ms. Dyarman objected, claiming that since Mr. Gsell was not the individual who performed the calibration and accuracy tests, her Sixth Amendment rights were being violated.

The objection was denied and Ms. Dyarman appealed to the Superior Court, which likewise held that the certificates were "not testimonial," and were admitted into evidence.


P.J. D'Annunzio: or 215-557-2315. Read more articles like this at


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