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[T] Talley v. State12/29/2003
the DUI offense at trial. Relying on Apprendi v. New Jersey, Talley argues that the prior convictions not only increased the penalty, but also changed the crime with which he was charged from a misdemeanor to a felony DUI. This argument misreads Apprendi, which relevantly holds that " other than the fact of a prior conviction, any fact that increases the crime beyond the prescribed statutory minimum must be submitted to a jury, and proved beyond a reasonable doubt." Here, because the increase in Talley's sentence was occasioned solely by his prior convictions, Apprendi is inapplicable.
(7) Talley's third, and final, claim of error is that the trial court abused its discretion by admitting the intoxilyzer certification log into evidence under the business records exception to the hearsay rule. This Court reviews a trial court decision to admit or exclude evidence for abuse of discretion.
(8) D.R.E. 803(6) provides that a business record may be admitted into evidence without the testimony of the person who made the record if: (a) the record was prepared in the regular course of business, (b) it was made "at or near the time of the event," (c) the information and circumstances of recordation are trustworthy, and (d) a custodian or other qualified witness is available to testify. Talley contests only one of those requirements, namely that the certification log be made "at or near the time" the intoxilyzer was used to test his breath. He therefore concedes that the State successfully established the other requirements of the evidentiary Rule.
(9) We conclude that the contested element was successfully established as well. To admit the results of the intoxilyzer machine, the State was required to establish that the machine was properly functioning both before and after Talley's breath was tested. That machine was routinely tested for accuracy by the State Chemist, who would certify the results in the certification log. In this case, however, because the State Chemist was not available to testify at trial, the State sought the admission of the certification log into evidence under D.R.E. 803(6), through the testimony of a qualified witness. To lay a foundation, the State elicited testimony from Detective Parsons of the Rehoboth Beach Police Department, concerning the logbook, which the Rehoboth Beach Police Department kept as a business record. The Detective testified that:
The pages inside of the book correspond to dates and times of when the State Chemist has come to the department and calibrated it to make sure that the Intoxilizer 5000 is working properly. It also corresponds to the serial number of the Intoxilizer that was used and the same one that was tested.
(10) The witness was then asked about two specific entries in the certification log, both made by the State Chemist. The witness testified that the first entry had been made on April 25, 2001 at 1450 hours, and that the second had been made on June 4, 2001. The entries were certifications by the State Chemist that the machine was working properly on both dates. In this manner, the State established, through the certification log as authenticated and described by a qualified witness, that the machine was functioning properly both before and after May 27, 2001, the date on which Talley's breath was tested. Accordingly, the State established a proper foundation for the admission of the certification log into evidence under D.R.E. 803(6), and the trial court's determination to admit the certification log into evidence was not an abuse of discretion.
(11) For all of these reasons, the judgment of the Superior Court is affirmed.
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