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.