In People v Pealer (2013 NY Slip Op 1019 [2/19/2013]), the Court of Appeals held that “records pertaining to the routine inspection, maintenance and calibration of breathalyzer machines” are nontestimonial evidence and so are not subject to the Confrontation Clause. Therefore, the records may be offered into evidence without testimony from those who created them. The Court noted that the certificates in question were not directly inculpatory and did not prove an essential element of the charges, as does a certification of an accused’s alcohol reading. The defendant’s other issues were found to be unpreserved or lack merit.
Judge Pigott dissented in part, writing to say that the initial police stop of the defendant for having a college sticker on the back window, a de minimis violation of Vehicle and Traffic Law 375(1)(b)(i), was not objectively reasonable. Judge Smith, in a concurring opinion, said that the dissent’s position, while attractive in this case, would erode the certainty and predictability of Whren v United States (517 US 806 ) and People v Robinson (97 NY2d 341 ).