Defendant, charged with driving while intoxicated (DWI) and aggravated driving while intoxicated (Aggravated DWI) per Vehicle & Traffic Law § 1192-2 and 1192-2(2)(a), moved pretrial to preclude on Confrontation Clause grounds intoxication evidence from the Datamaster intoxilyzer showing her blood alcohol level to be .23.
A New York Criminal attorney said that she objects to the People’s attempt to establish the Datamaster’s reliability by using written certifications in lieu of live testimony. The first document in question is a “CERTIFICATE OF PHOTOSTATIC COPY OF RECORD OF ANALYSIS — SIMULATOR SOLUTION signed by an Inspector of the State Police Crime Laboratories, Forensic Investigation Center, attaching a “CERTIFICATION OF ANALYSIS 0.10% BREATH ALCOHOL SIMULATOR SOLUTION” and purporting to establish that the simulator solution document is an exact photocopy of one made in the regular course of business of the Crime Laboratory and that it is the Crime Laboratory’s regular course of business to make such records at the time the events recorded in them occur or “within a reasonable time thereafter.”
The simulator solution certificate provides that, “[s]imulator solution lot number 08370 has been certified to contain the appropriate concentration of ethyl alcohol and is hereby approved for use” and is signed by the operatives of the New York State Police Forensic Investigation Center.
The Sixth Amendment’s Confrontation Clause “guarantees a defendant’s right to confront those who “bear testimony”‘ against him. Testimony includes, inter alia, “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use later at trial.”
At the same time, New York’s business records rule has long provided that documents kept in the regular course of business may be admitted in court notwithstanding hearsay concerns. It provides that [a]ny writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.
For reasons discussed below, the Court finds that both the simulator solution and calibration records are testimonial for Sixth Amendment purposes and therefore inadmissable absent live testimony by those who prepared them. First, the calibration certification is clearly testimonial pursuant to case law because it is “quite plainly” an affidavit like the documents at issue there
Additionally, both the calibration and solution testing records are clearly “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use later at trial” and, as such, are testimonial.
The Court’s decision contradicts most other New York courts which have considered this issue. They have found both calibration and solution records non-testimonial for Confrontation Clause purposes..
The rationale for denying the records testimonial status is threefold. First, they are non-testimonial because they are not prepared specifically for use in court or in gathering incriminating information against a particular individual. Second, they are business records created systematically pursuant to state statute that are not aimed at a particular individual or prosecution and which memorialize execution of a ministerial duty not requiring judgment or opinion. Third, the records provide only indirect or foundational evidence against defendants; that is, evidence is only testimonial if it goes directly to establishing a fact used to prove defendant’s guilt, not indirectly to establish the reliability of the devices used to adduce facts.
Documents kept in the regular course of business may ordinarily be admitted at trial for DUI despite their hearsay status. But that is not the case if the regularly conducted business activity is the production of evidence for use at trial. In a court’s Decision, an accident report provided by an employee of a railroad company did not qualify as a business record because, although kept in the regular course of the railroad’s operations, it was “calculated for use essentially in the court, not in the business. The analysts’ certificates-like police reports generated by law enforcement officials-do not qualify as business or public records for precisely the same reason.
One could also contend, as the court in another case, that the calibration and testing records are prepared for reasons other than litigation and therefore should enjoy business record protection. The Green court, in overturning a lower court ruling finding that such records are testimonial, observed that the breathalyzer intoxilyzer maintenance and reference solution testing records “have a primary business purpose” apart from use in litigation:
The first document at issue here is a portion of a maintenance record, showing that approximately three months before the subject arrest the breath testing instrument in question was serviced and certified as accurate. That the document has an incidental use as proof in court of the reliability of the instrument does not alter the fact that the document has a primary business purpose that would exist even in the absence of any litigation.
The random tests that the State Police perform serve the legitimate business purpose of quality assurance. The testing is done by the State Police in Albany before a lot is distributed if for no other reasons [sic] than to prevent the shipment of defective solutions, to eliminate the need for testing by the individual agencies involved, and to facilitate returns to the manufacturer should a problem be detected. The records kept by the State Police are mandated, as “memorials of the fact that the tests were made and what the results were.”
The certifications tell each distributee that the particular shipment they have received has been tested and is approved for use. In this court’s opinion, the business purposes served by these records would exist even in the absence of any litigation.
That last statement could serve as the mantra of a rent-seeking bureaucrat who values process as an end in itself, regardless of outcome. These records are not created for their own sake and have “an incidental use in court”; rather, as noted above, the entire purpose of calibration and solution testing is to provide reliable evidence for prosecuting DWI suspects. But for the need to prove DWI In court, these procedures and records would not exist.
The records in question also lack the presumption of neutrality typical business records enjoy because they are created by law enforcement personnel for law enforcement personnel and therefore may not be prepared with the same objectivity as records created by a third party truly indifferent to the outcomes of criminal prosecutions. Even if those State Police employees conducting the tests do not know the defendants against whom the records will be used, it is not unreasonable to assume, because they play for the same team, that they hope for convictions.
Confrontation is one means of assuring accurate forensic analysis. While it is true, as the dissent notes, that an honest analyst will not alter his testimony when forced to confront the defendant, post, at 2548, the same cannot be said of the fraudulent analyst. And, of course, the prospect of confrontation will deter fraudulent analysis in the first place.
The Court does not seek to cast aspersions upon the State Police or their technicians in making these observations but rather to underscore the fact that we must beware of putting too much trust in the man behind the curtain. Doing so threatens to undermine one of the fundamental trial protections defendants have enjoyed since the founding.
Accordingly, the defense’s Motion to preclude is granted.
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