State v. Barber
State v. Barber
Opinion of the Court
Defendant was charged with driving under the influence of intoxicants (DUII), ORS 813.010, and driving while his license was suspended, ORS 811.182. The state appeals from a trial court order excluding evidence certifying the accuracy of the machine on which defendant performed a breath test.
There is no dispute about the facts on which the trial court based its order. As part of proving the DUII charge, the state intends to rely on evidence that a breath test conducted after defendant’s arrest showed that defendant had a blood alcohol content of .13 percent, which was over the statutory limit of .08 percent and in itself constitutes being under the influence of intoxicating liquor. ORS 813.300(2). To do so, the state will need to show that the Oregon State Police (OSP) had tested the performance of the machine used for the breath test and certified that it was accurate. ORS 813.160(l)(b)(C). The state’s evidence in that regard consisted of certified copies of the written certification of the technician who tested the machine.
Based on that evidence, the trial court concluded that the certification was produced by data retrieval from a computer system that the OSP maintained and operated. It therefore denied the motion for reconsideration and adhered to its previous order excluding the evidence on the ground that the state had not satisfied the requirements of OEC 803(25) for the admissibility of the copy of the certification. The state appeals from the denial of reconsideration.
The issue on appeal is which of two statutory exceptions to the hearsay rule governs the admissibility of the document that the state offered as evidence. The parties agree that the original certification itself — and, thus, necessarily the certified copy — is hearsay under OEC 801(3). It is a statement, other than one made by the declarant while testifying at trial, that the state offers to prove the truth of the matter asserted. It is therefore inadmissible under OEC 802 unless it satisfies one of the exceptions to the hearsay rule. The state argues that the certification is admissible under the public records exception codified in OEC 803(8). That rule applies
“[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth:
* * * *
“(b) Matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding however, in criminal cases matters observed by police officers and other law enforcement personnel [.]”
OEC 803(8). In State v. Smith, 66 Or App 703, 675 P2d 510 (1984), we held that documents certifying that breath test equipment was in proper operating order were admissible under that subsection. We held that the provision in the rule concerning matters observed by police officers referred to officers’ observations in the course of investigating crime, not the routine function of testing breath test equipment to ensure that it is accurate. Id. at 707. Based on Smith, the state argues that the certification in this case is also admissible.
Defendant argues that the legislature imposed more stringent criteria for the admissibility of breath test certifications under ORS 813.160(l)(b)(C) when it adopted OEC 803(25)(a), which provides an exception for
“ [a]ny document containing data prepared or recorded by the Oregon State Police pursuant to ORS 813.160(l)(b)(C) or (E), or pursuant to ORS 475.235(4), if the document is produced by data retrieval from the Law Enforcement Data System or other computer system maintained and operated by the Oregon State Police, and the person retrieving the data attests that the information was retrieved directly from the system and that the document accurately reflects the data retrieved.”
The remainder of OEC 803(25) provides:
“(b) Any document containing data prepared or recorded by the Oregon State Police that is produced by data retrieval from the Law Enforcement Data System or other computer system maintained and operated by the Oregon State Police and that is electronically transmitted through public or private computer networks under an electronic signature adopted by the Oregon State Police if the*609 person receiving the data attests that the document accurately reflects the data received [is not excluded by the hearsay rule].
“(c) Notwithstanding any statute or rule to the contrary, in any criminal case in which documents are introduced under the provisions of this subsection, the defendant may subpoena the analyst, as defined in ORS 475.235(6), or other person that generated or keeps the original document for the purpose of testifying at the preliminary hearing and trial of the issue. Except as provided in ORS 44.550 to 44.566, no charge shall be made to the defendant for the appearance of the analyst or other person.”
OEC 803(25)(c) requires that the defendant have an opportunity to subpoena the person who created or keeps the original document, while OEC 803(8)(b) does not contain such a requirement. The parties argue about whether OEC 803(25) supersedes or supplements OEC 803(8)(b) in this case. Before reaching that issue, however, we must consider whether OEC 803(25)(a) applies at all to the document at issue in this case.
The legislature adopted what is now OEC 803(25)(a) in 1995. Or Laws 1995, ch 200, § 1. Four years later, it adopted the rest of OEC 803(25), including the requirement that the defendant have an opportunity to subpoena the person who created or keeps the original document. Or Laws 1999, ch 674, § 1. Because OEC 803(25)(a) is the crucial subsection, and because it was adopted at a different time from the other subsections, we consider it by itself. That subsection creates an exception to the hearsay rule for a document that contains material that the OSP prepares or records pursuant to two specific statutes if the document being offered was itself “produced by data retrieval from the Law Enforcement Data System or other computer system maintained and operated by the Oregon State Police” and the person retrieving the information attests “that the information was retrieved directly from the system and the document accurately reflects the data retrieved.” Id. The statutory wording is clear. It describes a document that was itself produced by
Until the adoption of OEC 803(25)(a), there was no clear way to present as evidence in court breath test certifications that existed only as data on the computer system. By permitting the use of an original document created directly from the data stored on a computer, OEC 803(25)(a) provided a way to do so. It thus dealt with something that the existing public records exception in OEC 803(8) did not cover.
Creating an exception to the hearsay rule, however, was not in itself sufficient to make the new document admissible. Because the new kind of document was not a copy of an existing paper public record, the existing self-authentication provisions for public records did not apply. See OEC 902(1). For that reason, the legislature adopted a new self-authentication rule, OEC 902(12)(a), in the same bill in which it enacted OEC 803(25)(a). Or Laws 1995, ch 200, § 2. That rule provides that a document that meets requirements that are identical to those in OEC 803(25)(a) is self-authenticating. The statute thus was part of a package that provided a way to take data from a computer and present it in court without the intermediate step of creating a document that would qualify as a public record and then preparing a certified copy of that document.
The legislative history of the statute makes the legislature’s intent clear.
In short, the express purpose of OEC 803(25)(a), as the legislature understood it, was to make admissible unsigned certifications of breath test machines taken directly from the state police computer. It had nothing to do with certified copies of signed certifications; under OEC 803(8) and our decision in Smith, there was no need to change the law concerning them. The statute added a new exception for a new kind of document; it did not change the rule concerning existing exceptions for older kinds of documents.
The trial court apparently based its decision, at least in part, on the fact that the technician used a computer to conduct the test of the breath machine and to produce the certification document that the technician signed. The court concluded that those facts meant that the certified copy offered as evidence was produced by data retrieval from a computer system. It is clear from our discussion of both the words of the statute and the legislative history that that conclusion was incorrect. OEC 803(25)(a) applies to a document
The testimony before the trial court indicates that, despite the adoption of OEC 803(25)(a), the OSP keeps breath test certification records as hard copies, not as data on a computer. Thus, the certified copy that the state offered in this case was created by the traditional method of copying a public record and certifying its authenticity and accuracy. It was not created by data retrieval in the sense that OEC 803(25)(a) uses the term. Rather it was admissible under the traditional public records exception of OEC 803(8), as we construed it in Smith. Under that rule, the admissibility of the document did not depend on defendant’s ability to subpoena the technician who conducted the test. The trial court erred in ruling otherwise.
Reversed and remanded.
The effect of the trial court’s ruling was to exclude evidence of the breath test itself.
The state submitted copies of two separate certifications at the hearing. One was dated shortly before defendant’s arrest, and one was dated two and a half months later.
On appeal defendant does not challenge the court’s constitutional ruling. See State v. Norman, 203 Or App 1, 125 P3d 15 (2005), rev den, 340 Or 308 (2006) (holding that admission of Intoxilyzer certification does not violate state or federal confrontation clauses).
Subsection (b) is inapplicable on its face; it applies only to documents that are electronically transmitted under an electronic signature adopted by the OSP. That circumstance does not exist here.
The state has presented the relevant portions of the legislative history in its brief, and we find that history helpful in understanding the statute. See ORS 174.020.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.