Kenneth Ballard v. State of Alaska

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA

KENNETH S. BALLARD,
Court of Appeals No. A-14123
Appellant, Trial Court No. 3PA-21-01328 CR

v.
OPINION
STATE OF ALASKA,

Appellee. No. 2813 — August 8, 2025

Appeal from the District Court, Third Judicial District, Palmer,
Shawn Traini, Judge.

Appearances: Michael L. Barber, Barber Legal Services,
Boston, Massachusetts, under contract with the Public
Defender Agency, and Terrence Haas, Public Defender,
Anchorage, for the Appellant. Seneca Theno Freitag, Assistant
Attorney General, Office of Criminal Appeals, Anchorage, and
Treg R. Taylor, Attorney General, Juneau, for the Appellee.

Before: Wollenberg, Harbison, and Terrell, Judges.

Judge TERRELL.
Kenneth S. Ballard was convicted, following a jury trial, of driving under
the influence of alcohol based on a DataMaster test result showing that he had a blood
alcohol content of 0.134 percent.1 Ballard appeals this conviction, raising two claims.
Ballard first argues that the district court erred by allowing the State to
introduce two DataMaster calibration reports under Alaska Evidence Rule 803(6), the
business records exception to the hearsay rule. But in State v. Huggins, we held that
calibration reports for breath testing instruments may be admitted under Alaska
Evidence Rule 803(8), the public records exception to the hearsay rule.2 We further held
that calibration reports can qualify as self-authenticating documents under Alaska
Evidence Rule 902(4).3 Applying Huggins, we conclude, on this alternative ground, that
the court did not err in admitting the signed and notarized calibration reports.4
Ballard next argues that the court erred by denying his request to introduce
maintenance records from the DataMaster under the business records exception to the
hearsay rule. Ballard sought to introduce these records through the police officer who
administered the breath test, but the officer disclaimed knowledge of the testing
instrument’s maintenance history, and the court ruled that the officer was not the proper

1
AS 28.35.030(a)(2).
2
State v. Huggins, 659 P.2d 613, 615-17 (Alaska App. 1982).
3
Id. at 617-19.
4
Ballard also argues that the DataMaster printout containing the test result was
inadmissible under the business records exception to the hearsay rule. But Alaska Evidence
Rule 101(a) provides that the evidence rules apply in all court proceedings, except as
otherwise provided by law. Under AS 28.35.033(d), DataMaster test results are presumed
valid “[i]f it is established at trial that a chemical analysis of the breath…was performed
according to approved methods by a person trained according to techniques, methods, and
standards of training approved by the Department of Public Safety.” The statute provides
that, under those circumstances, “further foundation for introduction of the evidence is
unnecessary.” AS 28.35.033(d).

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person to lay the foundation for the admission of the documents. We agree and,
therefore, affirm the court’s ruling and Ballard’s conviction.

Background facts and proceedings
On April 20, 2021, Wasilla Police Officer Ryan Hellman’s observations
of a vehicle led him to conclude that the driver might be impaired, so he initiated a
traffic stop. The driver, Kenneth Ballard, admitted that he had consumed alcohol, and
he subsequently failed standardized field sobriety tests. Officer Hellman then arrested
Ballard and administered a DataMaster breath test, which revealed that Ballard had a
blood alcohol content of 0.134 percent.
The State charged Ballard with misdemeanor driving under the influence,
under the theory that there was 0.08 grams or more of alcohol per 210 liters of Ballard’s
breath within four hours of his driving.5 At trial, the State called Officer Hellman as its
only witness. During Officer Hellman’s testimony, the State sought to introduce three
documents related to Ballard’s breath test: a printout from the DataMaster with
Ballard’s test result, and two calibration reports indicating that the DataMaster was
properly calibrated when it was routinely evaluated in April and May 2021.6 Both
calibration reports contained the signed affidavit of the scientific director of the state
crime lab and were notarized by a certified notary public.
Ballard objected to admission of the calibration reports, arguing that a
records custodian or qualified witness was required in order for the State to properly

5
AS 28.35.030(a)(2).
6
Under Alaska law, to introduce the results of a breath test at trial, the State must
show that the breath test was “performed according to methods approved by the
Department of Public Safety.” AS 28.35.033(d). A separate regulation provides that each
individual breath test instrument must be calibrated and certified by the scientific director
of the state crime lab or their designee, and that this process must be repeated “[a]t intervals
not to exceed 60 days.” 13 Alaska Administrative Code (AAC) 63.100(a)-(c).

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introduce the evidence under Alaska Evidence Rule 803(6), the business records
exception to the hearsay rule. The prosecutor argued in opposition that he did not have
to introduce the calibration reports through a live witness because the certified reports
are “self-authenticating” documents. The court agreed, ruling that the reports were
“self-authenticating” and admissible as business records. The State proceeded to lay a
foundation for admission of the evidence through Officer Hellman.
On cross-examination, Ballard’s attorney questioned Officer Hellman
about the scientific method through which breath testing instruments detect alcohol.
The defense attorney then questioned Hellman about the maintenance history of the
DataMaster used for Ballard’s test, and moved to admit seven maintenance records from
the state crime lab. These records indicated that between July 2019 and March 2020,
the instrument used for Ballard’s test experienced “filter errors.” It was worked on by a
crime lab employee in March 2020, and was then sent to the factory and refurbished,
returning to the crime lab in April 2020. It was taken out of service in November 2021.
(Ballard’s offense occurred in April 2021.) Officer Hellman denied personal knowledge
of the maintenance issues detailed in the records, noting that the police department had
breath test supervisors who might be able to explain how the instruments were
maintained and calibrated.
The State objected to the admission of the DataMaster maintenance
records on relevancy and hearsay grounds, and argued that Officer Hellman was not the
proper person to lay a foundation for these records because he had no personal
knowledge of the DataMaster’s maintenance history. Ballard’s counsel stated in
response that she would try to have an employee of the crime lab testify so that the
documents could be admitted.
The district court agreed with the State, ruling that Ballard had not laid an
adequate foundation to introduce the maintenance records under the business records
exception to the hearsay rule under Alaska Evidence Rule 803(6). The court
alternatively ruled that the maintenance records were not relevant under Alaska

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Evidence Rule 401. Ballard’s counsel did not subsequently produce a witness from the
crime lab to lay a foundation for admission of the DataMaster maintenance records.
The jury convicted Ballard of driving under the influence. This appeal
followed.

The calibration reports were admissible under the public records
exception to the hearsay rule
On appeal, Ballard challenges the district court’s ruling that the
DataMaster calibration reports were admissible as business records under Alaska
Evidence Rule 803(6). We affirm the court’s ruling on alternative grounds.7 In State v.
Huggins, we held that calibration reports for breath testing instruments are admissible
under Alaska Evidence Rule 803(8), the public records exception to the hearsay rule. 8
We conclude that the calibration reports in Ballard’s case were admissible under this
exception.
In 1979, the Alaska Supreme Court promulgated the modern rules of
evidence,9 which include a hearsay exception for “Public Records and Reports.”10
Under this exception, codified in Alaska Evidence Rule 803(8), certain records or
reports prepared by a public officer or agency are admissible even if the declarant is
available as a witness. The rule excepts from the general bar on hearsay evidence:
Public Records and Reports. (a) To the extent not
otherwise provided in (b) of this subdivision, records,
reports, statements, or data compilations in any form of a

7
Vaska v. State, 135 P.3d 1011, 1019 (Alaska 2006) (recognizing that “an appellate
court ordinarily has broad authority to affirm a trial court’s ruling on any legal theory
established in the appellate record”).
8
Huggins, 659 P.2d at 615-17.
9
SCO 364 (effective Aug. 1, 1979).
10
Alaska R. Evid. 803(8).

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public office or agency setting forth its regularly conducted
and regularly recorded activities, or matters observed
pursuant to duty imposed by law and as to which there was
a duty to report, or factual findings resulting from an
investigation made pursuant to authority granted by law.
(b) The following are not within this exception to the
hearsay rule: (i) investigative reports by police and other law
enforcement personnel; (ii) investigative reports prepared by
or for a government, a public office or an agency when
offered by it in a case in which it is a party; (iii) factual
findings offered by the state in criminal cases; (iv) factual
findings resulting from special investigation of a particular
complaint, case, or incident; (v) any matter as to which the
sources of information or other circumstances indicate lack
of trustworthiness.[11]
In 1982, we published our decision in State v. Huggins.12 In Huggins, the
State offered six documents as the foundation for admitting the defendants’ breath test
results, including a “certificate of calibration” for the specific breath testing instrument
that was used to administer the tests, which at that time was commonly referred to as
the “breathalyzer.”13 The trial court ruled that these documents were inadmissible
hearsay.14
We reversed the trial courts’ rulings,15 issuing two holdings that are
relevant to Ballard’s case. First, we held that the breathalyzer calibration reports offered
by the State were admissible under Alaska Evidence Rule 803(8)(a) without the need

11
Id.
12
Huggins, 659 P.2d 613.
13
Id. at 614 & n.1.
14
Id. at 614-15.
15
Id. at 619.

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for “personal testimony” from a live witness.16 We concluded that the breathalyzer
calibration report fit the criteria for public records set out in Evidence Rule 803(8)(a),
in that it constituted “records, reports, statements, or data compilations in any form of
a public agency setting forth its regularly conducted and regularly recorded activities,
or matters observed pursuant to duty imposed by law and as to which there was a duty
to report[.]”17 We also concluded that “[t]he factual findings included in the records that
comprise the breathalyzer packet are compiled in the regular course of business by
government officials in advance of any . . . case in which the breathalyzer tested will be
used.”18 Therefore, “[a]n official would have no motive to misrepresent those facts
because the nexus between his findings and a particular result on a particular
prosecution is too attenuated.”19
Second, we held in Huggins that the breathalyzer calibration reports were
self-authenticating under Alaska Evidence Rule 902(4).20 Under this rule, copies of
public records are self-authenticating if they are properly “certified as correct by the
custodian or other person authorized to make the certification.”21 We noted that

16
Id. at 615-16. In addition to finding that the breathalyzer packet was admissible
under Evidence Rule 803(8)(a), we found that “admission of the breathalyzer packet under
Evidence Rule 803(8)(a) is not precluded by the exceptions to the rule provided in
Evidence Rule 803(8)(b)(i)-(iii).” Id. at 616.
17
Id. at 615-16 & n.2.
18
Id. at 616.
19
Id.
20
Id. at 617-19.
21
Alaska R. Evid. 902(4). In Huggins, we noted that when evaluating evidence under
Rule 902(4), “absent evidence to the contrary, the trial court should presume that what
purports to be a state official’s signature, under seal, certifying a document, or a signature,
or that a person is a public custodian, is in fact a valid signature.” Huggins, 659 P.2d at
618.

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“Evidence Rule 902(4) requires that each official record to which it applies must be
‘authorized by law to be recorded or filed and actually recorded or filed in a public
office[,]”’ and that applicable regulations authorized the filing of the breathalyzer
calibration reports and that such reports were actually filed and recorded.22
No amendments have been made to Alaska Evidence Rules 803(8)
and 902(4), and Huggins has not been overruled. Thus, Huggins remains good law.
Applying Huggins to the facts of Ballard’s case, we conclude that the DataMaster
calibration reports were admissible under the public records exception to the hearsay
rule.23 We further conclude that the calibration reports were self-authenticating public
records because they contained the signed affidavit of the scientific director of the state
crime lab and were notarized by a certified notary public.24

The district court did not err in denying Ballard’s request to introduce the
DataMaster maintenance records due to lack of proper foundation
Ballard next argues that the district court erred by denying his motion to
introduce into evidence several state crime lab records detailing historical maintenance
performed on the DataMaster used for Ballard’s test. Ballard acknowledges that the
maintenance records are hearsay,25 but he argues that the district court erred by ruling

22
Huggins, 659 P.2d at 617.
23
See Alaska R. Evid. 803(8)(a). We note that Ballard never challenged the process
of verifying calibrations of the DataMaster as faulty or “indicat[ing] lack of
trustworthiness.” See Alaska R. Evid. 803(8)(b)(v).
24
See Alaska R. Evid. 902(4).
25
Alaska R. Evid. 801(c) (“Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted.”); Alaska R. Evid. 802 (“Hearsay is not admissible except as provided
by [the Alaska Rules of Evidence], by other rules prescribed by the Alaska Supreme Court,
or by enactment of the Alaska Legislature.”).

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that the records were not admissible under Alaska Evidence Rule 803(6), the business
records exception to the hearsay rule.
The Alaska Supreme Court has explained that five requirements must be
satisfied under the business records exception to the hearsay rule:
[F]irst, the record must be of a “regularly conducted business
activity”; second, the record must “be regularly kept”; third,
the source of information “must be a person who has
personal knowledge”; fourth, the information must have
been “recorded contemporaneously with the event or
occurrence”; and fifth, “foundation testimony by the
custodian of the record” must be provided.[26]
At trial, Ballard sought to meet this fifth requirement — the “foundation
testimony by the custodian of the record” — by cross-examining Officer Hellman.
However, in response to the attorney’s questioning, Hellman testified that he was not
involved in preparing the state crime lab’s maintenance records and denied personal
knowledge of the content of the records.
Given this record, we agree with the district court’s ruling that Officer
Hellman was not “the appropriate witness for [laying] a foundation” because he had
“no personal knowledge of” the records. Accordingly, we conclude that the district
court did not abuse its discretion in declining to admit the DataMaster maintenance
records due to lack of a proper foundation.27 Because Ballard did not lay an adequate
foundation for admitting the records under the business records exception, we affirm
the court’s ruling that the records were inadmissible hearsay.28

26
Wassillie v. State, 411 P.3d 595, 600 (Alaska 2018) (emphasis added) (quoting
Noffke v. Perez, 178 P.3d 1141, 1147 (Alaska 2008)); see Alaska R. Evid. 803(6).
27
See Thompson v. State, 210 P.3d 1233, 1239 (Alaska App. 2009) (applying the
abuse of discretion standard to foundation ruling).
28
Because we affirm on these grounds, we do not address the court’s alternative ruling
that the maintenance records were inadmissible under Alaska Evidence Rule 401.

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Conclusion
We AFFIRM the judgment of the district court.

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