Foley, J.
Bryan Priest (“Priest”) appeals a judgment for an infraction for operating a commercial vehicle with an alcohol concentration equivalent (“ACE”) of greater than 0.04 but less than 0.08. Priest sought to challenge the admissibility of the sole evidentiary basis establishing his ACE. He was initially successful on an interlocutory appeal but failed to exclude evidence (albeit from a different source) of his ACE at the subsequent bench trial. On appeal, Priest argues that the trial court erroneously admitted the evidence for two reasons: (1) it constitutes hearsay; and (2) it does not comply with the Indiana Administrative Code. Both arguments fail, and we therefore affirm.
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Priest first contends that the database readout is hearsay. Hearsay is an out-of-court statement offered in court for purposes of proving the matter asserted in the statement…
The State does not attempt to argue here, however, that the database readout falls within one of the hearsay exceptions; its argument is more fundamental than that. The State argues that the database readout does not constitute hearsay by definition because the statements it contains are automatically generated by a machine, and, thus, do not come from a person. We agree.
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…To the extent that any doubt remains, we expressly reaffirm our endorsement of this mechanical hearsay rule. “The factors upon which the value of testimony depends are the perception, memory, narration, and sincerity of the witness[.]” 2 McCormick On Evid. § 245 (8th ed.). And “the fundamental purpose of the hearsay rule [is] to preserve the right to cross examine the declarant.” Powell v. State, 714 N.E.2d 624, 628 (Ind. 1999) (citing Cain v. State, 300 N.E.2d 89, 92 (Ind. 1973)). But the Intox ECIR II, or any other machine for that matter, cannot perceive or remember. It cannot narrate or feign sincerity. And it cannot be cross-examined. Those realities all apply with equal force to the servers that host the Department of Toxicology database that stores ACE test results. We find that Cranston and the mechanical hearsay rule are controlling here, and, thus, the trial court did not err in admitting the database readout over Priest’s hearsay objection. [Footnote omitted.]
Our analysis, however, is not concluded. Priest contends that the breath test at issue failed to comply with the requirements of Section 260 of the Administrative Code (“the Code”)… In brief, if results of a breath test are submitted as evidence in a proceeding occurring pursuant to one of the four named chapters, that test must have complied with the rules promulgated by the Department of Toxicology and published in the Code. In order for the database readout to be violative of the Code, it must first, of course, be subject to the Code. And, as the State correctly points out, Priest was cited under Indiana Code Section 9-24- 6.1-6, which is not one of the four named chapters. [Footnote omitted.] Neither party has directed us to any statute—and we are aware of none—that subjects breath tests of commercial drivers to the rules and procedures that govern those tests for noncommercial drivers, or impacts the admissibility of the results of those tests. The Code simply does not apply to the database readout in this case.
We are, therefore, faced with a strange and potentially dangerous conclusion: state law conditions the admissibility of breath test results on the strict compliance with rigorous standards—designed and adopted by the Department of Toxicology—for all breath tests unless the test is administered to the driver of a commercial vehicle cited under I.C. 9-24-6.1-6. We cannot, of course, know whether that result is the product of considered intent by the General Assembly, or the product of mere inadvertence. [Footnote omitted.] The objectives served by ensuring accurate breath tests are just as pertinent to drivers of commercial vehicles; indeed, the very fact that a lower ACE is prohibited for such drivers suggests the obvious: an intoxicated driver of a crane or semi-truck is likely to pose a greater risk to Hoosiers and their property than an intoxicated driver of a 1993 Dodge Neon. And the fact that the Code does not yet apply to commercial driver’s license infractions yields another inequitable possibility: a truck driver might lose her entire livelihood based on the admission of breath test results derived from a lesser, unregulated test administration. [Footnote omitted.] Lower standards could yield stark penalties.
We must decline Priest’s implicit invitation to hold that the Code applies: (1) to commercial driver’s license cases; and (2) insofar as he argues that the database readout was unsigned, that the signature requirement applies to documents other than the test ticket. Priest’s arguments pertaining to the Code are therefore necessarily unavailing. The fact that the database readout is not signed is of no moment: there is no requirement that it be signed, and even if the Code contained one, the Code does not apply. [Footnote omitted.]…
A word of caution: our decision today should not be read to suggest that the State may end-run around the necessity for breath test standards merely by citing commercial drivers under Indiana Code Section 9-24-6.1-6. Section 260 of the Code may not yet formally apply to citations under that statute, but we find it illuminating that the State laid the foundation to demonstrate that Trooper Hampton did, in fact, comply with the requirements of the Code. In other words, while demonstrating compliance with the Code may not be strictly necessary, it is certainly sufficient to demonstrate that the breath test administered was reliable…Though the requirements of the Code did not render the database readout inadmissible, it is worthy of note that significant foundation was required—in the alternative—to ensure admissibility. Accordingly, the trial court did not abuse its discretion in admitting the database readout over objections that it did not conform to the Code.
Affirmed.
Vaidik, J. and Tavitas, J., concur.