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Commissioner of Motor Vehicles

In this Criminal action, DWI charges were commenced by filing simplified traffic informations and supporting depositions rather than misdemeanor informations. Under our law as it applies in this case, simplified information is “a written accusation by a police officer filed with a local criminal court, which charges a person with the commission of one or more traffic infractions and/or misdemeanors relating to traffic, and which, being in a brief or simplified form prescribed by the commissioner of motor vehicles, designates the offense or offenses charged but contains no factual allegations of an evidentiary nature supporting such charge or charges. It serves as a basis for commencement of a criminal action for such traffic offenses, alternative to the charging thereof by a regular information, and, under circumstances prescribed in section 100.25, it may serve, either in whole or in part, as a basis for prosecution of such charges.”

If requested, sworn facts will be provided in a supporting deposition from the arresting officer which must “contain allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense or offenses charged.”6 Importantly, this deposition must be “subscribed and verified.”7 The facts, however, need not be handwritten. Our highest court has sanctioned the use of “fill in the blank” supporting depositions in DUI cases noting that “the factual statements in the deposition are communicated by check marks made in boxes next to the applicable conditions and observations signifying the complainant’s allegations as to the existence of those conditions and the truth of those observations.”

It is within this legislative and common-law context that, as the millennium approached, several segments of state government began thinking about the opportunities presented by maturing computer technologies. The New York State Police and Department of Motor Vehicles started studying e-tickets and the efficiencies of data entry, transfer and retrieval which they presented.

The advent of the Electronic Signatures and Records Act (ESRA), recognized that Courts had entered a new era in the public and private sectors “relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities,” and the rules accompanying the legislation were intended “to be flexible enough to embrace future technologies that comply with ESRA” by giving “governmental entities the greatest latitude to determine the most effective protocols for producing, receiving, accepting, acquiring, recording, filing, transmitting, forwarding and storing electronic signatures and electronic records within the confines of existing statutory and regulatory requirements regarding privacy, confidentiality and records retention.” The electronic records encompassed by the statute include “information, evidencing any act, transaction, occurrence, event, or other activity, produced or stored by electronic means and capable of being accurately reproduced in forms perceptible by human sensory capabilities.”

Accordingly, the court finds no difficulty in accepting the statutory propositions that “the use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand,” and that “[a]n electronic record shall have the same force and effect as those records not produced by electronic means.” What troubles the court is that with regard to accusatory instruments certain additional statutory safeguards and procedural protocols may be in order.

During the hearing, it became clear that in early 2001, the New York State Police, the Department of Motor Vehicles (DMV), the Division of Criminal Justice Services (DCJS), the Office of Court Administration (OCA), the State Magistrate’s and Court Clerk’s Associations among others became involved in a project to explore the possibility of using e-tickets to replace handwritten uniform traffic tickets. After reviewing the concerns and needs of all affected parties, the State Police chose Traffic and Criminal Software (TRACX) to be used for the project and a pilot program was initiated in Warren County in November 2001.Following a successful refinement process there, the DWAI program was made available statewide. TRACX was used by the State Police in both of the cases before this court.

Through cross-examination at the hearing it became apparent that e-tickets differ in a number of important respects from UTTs. First, with e-tickets there is only one document: the simplified traffic information. Everyone receives a duplicate original of the e-ticket with the arresting officer’s electronic signature affixed. Second, the e-ticket is printed in one color. Third, it is one-sided. While in the court’s view, it would be advisable for the Commissioner of Motor Vehicles to more specifically delineate regulations regarding the form of electronic tickets as has been done with UTTs, the e-tickets still “conform substantially to a paper ticket”36 and are not a basis for dismissal since on its face the e-ticket “substantially conforms to the requirement therefor prescribed by” the Criminal Procedure Law, Vehicle and Traffic Law and the Commissioner’s regulations.

While the simplified informations charging these defendants with DWI are sufficient, it is respectfully suggested that the Legislature and the Commissioner of Motor Vehicles work with dispatch to address some of the concerns raised by this opinion. While the bill recently passed by our State Senate may be a first step in this process, our common-law traditions dictate that further steps should be taken.

Since the Criminal Procedure Law and Vehicle and Traffic Law defer in great measure to the Motor Vehicle Commissioner’s rule-making authority, the most expedient changes may be accomplished by amending the rules relating to e-tickets. Specifically, the rules should describe in detail the form of the ticket to make it clear that it is one-sided and in one color. The rules should set forth a type size and location on the e-ticket for notice with regard to how one may appear and answer a ticket as well as sanctions which may be imposed for failure to appear. More importantly, the rules should require that the last act by an officer issuing an e-ticket should be to click on an “I affirm” button on the computer which is preceded on the screen by a form notice which mirrors that on the simplified information that indicates it is “affirmed under penalty of perjury.” As Lieutenant Casper candidly admitted at the hearing, there is no reason why the software can’t be reprogrammed to accomplish such an affirmation.

While such rule changes may be sufficient where prosecutions are based on simplified informations alone, they may not go far enough in those cases where a supporting deposition is prepared to accompany the e-ticket. In those cases, the court respectfully suggests that the Legislature needs to make a number of amendments to the Criminal Procedure Law and Vehicle and Traffic Law. First, since the more restrictive definition of “electronic signature” was deleted from ESRA solely because of compatibility concerns in commercial applications, that or similar language should be incorporated into a Criminal Procedure Law definition of “electronic signature” to appear in section 1.20.That definition would then define such a signature not only for e-ticket supporting depositions, but could also be used in conjunction with other accusatory instruments and papers filed with the criminal courts. The CPL article defining verification should be amended to refer to the new protections in CPL 1.20 for electronic signatures and then explicitly state that a verifying signature can be signed electronically as long as those safeguards are in place.

Obviously, the most important facet of an electronic signature used in our criminal courts must be the insistence that the electronic signature can be affixed only by a knowing and purposeful act by the person intending to sign the document. That could be accomplished by clicking on a form notice indicating the signer’s acknowledgment that “false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law.”46 Such an act would be similar to what computer users do when they install a new program on their computers and agree to the terms of the software developer in order to activate the program. Or, the individual could sign a pressure sensitive screen after viewing the document and reading a verification notice or being sworn by a court, notary or desk sergeant. That process would be similar to that undertaken by customers who pay with a credit or debit card at some retail outlets. It would appear that in the latter cases, the person before whom the individual swore to tell the truth would also have to electronically sign the document. It would seem prudent to also add to articles 100, 150 and 170 of the Criminal Procedure Law, as well as section 207 of the Vehicle and Traffic Law which presently does not reference either simplified informations or e-tickets—rather by its terms it covers issuance of a “uniform traffic summons and complaint.”

Until the suggested changes to the TRACX protocol regarding the timing of electronic signatures being affixed to supporting depositions are made, prosecutions by electronic ticket using only such signatures on supporting depositions may be seriously flawed. At the very least, in cases such as these wherein a conviction becomes a predicate for a felony prosecution with its attendant potential for civil disabilities (such as the loss of the right to vote), general orders for troopers and arresting officers should require them to send a hard copy of the supporting deposition to the court with a second handwritten signature affixed following the perjury notice and just before or after the electronic signature. While our laws should be flexible enough to account for technological innovations which foster greater accountability, increased information availability and fiscal responsibility, our common-law traditions dictate that a defendant’s due process rights deserve at least an equal footing.

Because the supporting depositions filed with the court in each of these cases bear original signatures, the motions to dismiss the DWI charges are denied.

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