S. Ct. Crim. No. 2014-0084

Convictions for driving under the influence of an intoxicating liquor and driving with a prohibited blood alcohol level are affirmed. The issue whether the defendant's Sixth Amendment right to confront witnesses against him was violated because the officer responsible for the maintenance and calibration of a breath alcohol analysis machine was not presented as a witness at trial was not properly presented in the trial court and has been waived. The defendant did not raise a Confrontation Clause claim in a motion to suppress or in a motion in limine to preclude admission of the evidence at trial. He did not object to admission of the breath test and indeed introduced the breath test results as a defense exhibit. This defendant invited the admission of the breath test results into evidence through counsel, who had the authority to waive the right to cross-examination, thus waiving the issue and precluding consideration on appeal of whether the failure to present at trial the person responsible for calibrating and maintaining the breath test machine violated Confrontation Clause rights. The evidence was sufficient to convict the defendant for driving under the influence of an intoxicating liquor with a prohibited blood alcohol content under 20 V.I.C. § 493(a)(1). Proof that he drove, operated or was in actual physical control of a motor vehicle. He occupied the driver's seat of the vehicle and inserted the key into the ignition of the vehicle in the officer's presence. The prohibited blood alcohol content element for the conviction under § 493(a)(2) was incontestably established through the blood alcohol breath test results. Both convictions are affirmed.