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Court Decides Use of Breathalyzer Under Business Records Exception


Initially, the court held that records reflecting the calibration of breath test machine and analysis of breath test simulator solution used in DWI cases were non-testimonial hearsay and admissible over confrontation clause objection under business records exception. The certifications to be submitted for the calibration or maintenance of the breath test instrument and the analysis of the Breath Alcohol simulator solution used in the breath test instrument are either testimonial or non-testimonial in nature. When proven to be testimonial then the complainant must bring in the analyst. If it is non-testimonial, the complainant may lay the basis for introduction of the records.

Testimonial statements are material such as affidavits, custodial examinations, extrajudicial statements, depositions, prior confession, prior testimony that the accused was unable to cross-examine, similar pretrial statements, formalized testimonial materials and statements that were made under circumstances that the complainant would reasonably expect to be used in the later trial.

A New York Criminal Lawyer said the Supreme Court deliberately left for another day any effort to spell out a comprehensive definition of testimonial. The Court does say that when a non-testimonial hearsay is at issue, it is wholly consistent with the design to afford the states flexibility in their development of hearsay law. The Supreme Court’s analysis of testimony excludes some hearsay exceptions, such as business and official records. To hold otherwise would require numerous additional witnesses without any apparent gains in the truth-seeking process. After all, cross-examination is a tool to flesh out the truth, not an empty procedure.

One State Law allows a lab chemist to test materials for drugs and to send in a sworn statement as to the identification of the drug and its weight. The sworn statements were submitted as legitimate evidence of what was asserted. A New York Law would not allow this. The chemist is necessary as a witness to establish what he analyzed. The court limits extrajudicial statements to formalize testimonial materials such as affidavits, depositions, prior testimony or confessions.

Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because they have been created for the administration of an entity’s affairs and not testimonial. A Manhattan Criminal Lawyer said the court specifically states that it does not hold anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample or accuracy of the testing, must appear in person as part of the complainant’s case. Additionally, the documents prepared in the regular course of equipment for maintenance may well qualify as non-testimonial records.

The Court is aware of recent Court DWI rulings with regard to the challenge of Alcotest results and not bound by it and finds its rationale to decide not in accordance with most State Court’s findings that calibration reports are not testimonials and qualify as admissible business records. In addition, even business records devised primarily for litigation receive business record protection so long as they have a secondary business purpose. Therefore, the court will not hold that the calibration and simulator solution records cannot be considered as typical business records. The breathalyzer machine can be used not only for legal action purposes such as criminal cases but it can also be beneficial for non-legal intentions. If an accused person who takes the breathalyzer test blows a reading of .06% or below within two hours after the arrest, it is legitimate evidence that he is not intoxicated. Maintaining it has a minimum a dual purpose.

Accordingly, the certifications for the calibration and maintenance of the breath test instrument and the analysis of the Breath Alcohol simulator solution used in the breath test instrument will be allowed to be admitted at trial pending a proper foundational basis being established.

When the Court makes its conclusion, one party will surely rejoice leaving the other party grieving. Whether you have been charged with a DWI, sex crimes or a theft crime, make an appointment with Stephen Bilkis and Associates.

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