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Confrontation is one means of assuring accurate forensic analysis

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.

To Be Cont…

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