Posted On: March 29, 2012 by Stephen Bilkis

This was an alcohol related driving trial

This was an alcohol related driving trial (accident related or injury prevention) where the defendant opposed introduction of the foundational documents customarily offered to validate the admission of the results of a breath test and subsequently objected to the results being admitted due to lack of foundation on the ground that the defendant was unable to exercise his constitutional right to confront the witnesses against him.

The court, as this was a bench trial, and in the interests of judicial economy, allowed the evidence to be introduced and permitted the breath test results which were considered by the court as fact finder.

Discussion, as follows:

NY Criminal defendants enjoy co-existing state and federal constitutional rights to confront their accusers. A defendant's present day adversarial right to meet an accuser "face to face" sprung from early Roman law. It is this recognition of a criminal defendant's long dormant right to face and cross examine accusers in open court as a colonial response to judicial abuses which the majority in the landmark case of Crawford (referred to as Crawford) asserted was the historical foundation for the Sixth Amendment. The Crawford majority proclaimed that when assessing the admissibility of what it termed "testimonial" evidence against an accused, the Confrontation Clause mandates that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. Such confrontation right was part of the original Bill of Rights and was later added to a number of State Constitutions. It wasn't until 1965, however, that the Supreme Court announced that all States were bound by its provisions through the Fourteenth Amendment. Accordingly, the majority of cases interpreting the relationship between the Confrontation Clause and the admission of out-of-court statements at criminal trials have come within the last forty years.

Post-Crawford appellate cases clearly delineated as "testimonial" those situations in which government officials in a solemn and formal setting produced evidence against an identified individual regarding a particular offense. Those are factors consistent with the reasons underlying the Sixth Amendment and critical to the Supreme Court's Confrontation Clause analysis. While this definition of "testimonial" would curtail Confrontation Clause analysis, it would not open floodgates deluging trials with hearsay since this definition does not preclude states from stemming the tide of extra-judicial statements by employing the Roberts framework when considering the admissibility of "non-testimonial" hearsay. Because testimonial is not synonymous with evidentiary, the use of documentary evidence in lieu of live testimony at a criminal trial is not categorically unconstitutional. Rather, only those solemn formal ex parte affidavits which accuse a particular individual of specific acts of wrongdoing or which were created by government officers solely for use as evidence against a specific defendant appear to fall within the parameter of "testimonial" hearsay for Confrontation Clause purposes.

It can be deduced from the foregoing that the certificate of calibration for the breath test instrument, the simulator solution analysis and weekly instrument test records are not "testimonial" under the Confrontation Clause. The calibration certificate and certification of analysis of the simulator relate to tests performed well before the defendant was stopped (for car accident or personal injury prevention) for DWI and later given a breath test. The technicians who created the reports memorialized their results before any member of law enforcement accused the defendant of driving with a blood alcohol level above a .08 %. Thus, in a Sixth Amendment sense, neither the technicians nor those who certified their test results as business records can be construed as bearing "witness against" this particular defendant under Crawford. While the weekly simulator solution test logs bracket the date of the defendant's breath test and were performed by the same law enforcement agency on the same instrument, they too are "non-testimonial". The tests were performed routinely and were scheduled irrespective of the administration of the defendant's breath test.

Clearly, all of the documents objected to were foundational. They do not constitute evidence of the defendant's actions or his physical or mental condition. Instead the documents were offered as evidence tending to prove the reliability of the instrument used to test the defendant's breath. They do not relate specifically to his arrest or accuse him of any offense. In fact, they would be just as relevant in a DWI case where the defendant's BAC level was .02% as they would be in a case where it was alleged to be a .20% because the breath test instrument is a screening device which may be used to charge a person with a misdemeanor, with a violation or used to completely exonerate an individual.

However, the inquiry didn’t end with the fact that the DWI foundational documents were not "testimonial". The records were still out of court statements by an absent witness offered for the truth of the facts asserted in them; a classic hearsay.

In evaluating the admissibility of a purported business record in a criminal case, the Court of Appeals indicated that "[w]hile the concept of `business' has ventured far beyond the mercantile origins of this hearsay exception...still not every record made in business falls within the exception." In addition, admission of business records impacts a defendant's Confrontation rights and that "[t]he particular force of documents which are not subject to cross-examination, and which may be taken into the jury room..., cannot be ignored. " In fact, even if a record qualifies as a business record, there are those rare instances in which other evidence in a case may cast such doubt on the document's reliability that due process requires live testimony to be offered before a jury can be asked to evaluate the weight to be given to the evidence. Nonetheless, over the past twenty-five years, our Court of Appeals has consistently recognized that properly authenticated instrument calibration certificates, chemical analysis certificates and weekly test logs prepared by absent witnesses may be admitted in a DWI case pursuant to CPLR Rule 4518(c). DWI foundational documents can be made available to a fact finder in a criminal case, if the judge determines that the documents possess an "adequate indicia of reliability." The reliability of the some documents can "be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception."

The DWI documents were business records and that the business records exception is firmly entrenched in our law. With pre-colonial roots, the statutory "business records exception grew out of considerations of necessity and trustworthiness." In New York, it has blossomed into a statutory and common law framework which requires that, first, the record be made in the regular course of business that it reflect a routine, regularly conducted business activity, and that it be needed and relied on in the performance of functions of the business; second, that it be the regular course of such business to make the record (a double requirement of regularity) that the record be made pursuant to established procedures for the routine, habitual, systematic making of such a record; and third, that the record be made at or about the time of the event being recorded—essentially, that recollection be fairly accurate and the habit or routine of making the entries assured.

New York taxpayers need and rely on the labs to make sure that materials purchased with public funds are fit for their intended purpose. Thus, the State has a fiscal interest in making sure the chemicals are properly formulated and that the instruments function appropriately. Moreover, the State has a due process interest in assuring itself and the public that the breath testing instruments and chemicals used by law enforcement produce accurate results. Also, our courts have held that before results of a breath test may be admitted in a DWI trial "the People must introduce evidence from which the trier of fact could reasonably conclude...that the testing device was in proper working order at the time the test was administered to the defendant and that the chemicals used in conducting the test were of the proper kind and mixed in the proper proportion." New York State has established routine and periodic testing procedures for both breath test instruments and chemicals.

Reasonable technicians have anticipated that certified copies of the results of their work might be offered into evidence at future trials involving the prosecution of a number of unknown individuals for crimes not yet committed but these does not mean that these documents are inadmissible without their live testimony. Unlike business records created for the sole purpose of litigation which are not true business records and fall outside the hearsay exception, these documents have substantial non-litigation purposes. In the analogous area of police car speedometer calibrations, our Court of Appeals has held in a prior case that records prepared solely for the purpose of litigation should be excluded. But, if there are other business reasons which require the records to be made, they should be admissible. The speedometer deviation records should be admissible since they were not records made outside of the ordinary course of police department business, solely for the instant litigation. It is generally true that such speedometer tests are made at regularly scheduled intervals, and that the records kept are merely memorials of the fact that the tests were made and what the results were. This is a classic example of making records in the regular course of business; and, it is probably the regular course of police business in maintaining highway safety to make such records at the time of the test. While it is true that such records may later be used in litigation, such was not the sole purpose when they were made, and, therefore, they should not be excluded merely because this was a possible future use. Had proper foundation been laid for admission of the speedometer deviation record as a business entry, it should have been received in evidence. Here, the People provided sufficient evidentiary foundation for admission of the documents. Therefore, they are admissible and the fact finder's focus shifts to the weight to be given them when challenged by a defendant in cross-examination or presentation of proof. But such is not the same with the present case on the breath test operator's supporting deposition or the "BAC DataMaster State of New York Evidence Ticket", which was printed out by the instrument after the defendant's breath test. Those documents related directly to the defendant's arrest. They memorialized the breath test that the People offered as a circumstantial evidence of the defendant's blood alcohol level at the time he was driving. The deposition was clearly prepared in a formal and solemn manner by a public officer to accuse the specific defendant accusing him of a particular offense. The printout was a hardcopy record of the defendant's breath test. Accordingly, they were both "testimonial" under Crawford and were inadmissible at trial unless, the breath test operator was present and available for cross-examination by the defendant.

The DWI foundational documents presented were found to be not "testimonial" under the Confrontation Clause and were, thus, admitted as business records.

Several accidents may result from people who drive under the influence. These may be from minor to more serious injuries which may affect people on the road and even mere bystanders. If you are involved in any accident caused by drunk driving and you want to know what your options are, seek professional help. Get in touch with Stephen Bilkis & Associates. We have New York City Injury Lawyers with a variety of specializations. Our NYC Car Accident Lawyers or NYC SUV Accident Lawyers or NYC ATV Accident Lawyers, and the like, are some of our expertise.