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On July 8, 2005 at approximately 2:00 A.M., the defendant was driving northbound on State Route 78 (South Transit Road) in the Town of Lockport and was stopped by a New York State Trooper. The trooper was on routine patrol with Trooper Middlebrooks when the defendant pulled out of a local bar, and narrowly missed being broadsided by a tractor trailer truck which was proceeding in the southbound lane of South Transit Road. The trooper followed the defendant, who was operating her car in the center turn lane of the five-lane state highway. He paced her car with his speedometer and also estimated her speed at 72 mph in a posted 55 mph zone. Defendant’s car was weaving in and out of traffic and was eventually stopped for speeding and failure to keep right. Defendant responded to the lights and siren of the New York State Police car and stopped. While Richardson asked the defendant for her license and registration, he noticed a strong odor of alcohol from the car. He spoke with her and she told him she was involved in a softball game at the bar and had consumed eight beers. Her words were slurred, he noticed her eyes were watery and she had confused speech. there were no weapons invovled.

The trooper administered three field sobriety tests to determine if she was intoxicated. Those tests which were administered were the walk and turn test, one-leg stand test and alphabet recitation. The defendant was unable to complete the alphabet and stopped at the letter “o,” thus failing that test. Likewise, she was unable to do the nine-step stop and turn test, but rather took 12 steps and then walked to her car, but not in a straight line. Defendant likewise failed that test. Finally, she simply could not do the one-leg stand test. He gave her a breath screening test on site, which she failed. When the trooper advised her she was under arrest for driving while intoxicated, she became upset and distraught, so much so that she had to be handcuffed. The defendant was taken into custody and transported to the New York State Police barracks and given her breathalyzer and Miranda warnings. Defendant provided a breath test sample, which was analyzed on an Alcotest 7110MKIIIC instrument. The test was performed well within a two-hour time period and was completed at approximately 2:45 A.M. Richardson described the prescribed manner in which he gave the test, as well as his observations of the defendant. She consented to the test. The test instrument provided the readout that defendant’s blood alcohol content (B.A.C.) was at .21%.

While at the station, defendant admitted that she had consumed 18 beers, not 8. The trooper has handled over 120 DWI cases and is a certified breath test operator. He has also determined intoxication of people both on the job and socially. She was once tried for domestic violence.

In order to establish the foundation for the admission of the breath test result at trial,the prosecution offered into evidence the record of calibration/maintenance and the certification of analysis of the breath alcohol simulator solution. The prosecution also produced certifications.

The defendant interposed a Confrontation Clause objection to the admission of these documents in that admission would deny an opportunity to cross-examine the technician who inspected, calibrated and maintained the breath test machine and also the individual who tested the simulator solution.

Defense argues that since the trooper did not perform the required calibration/maintenance or analysis, he was not qualified to testify as to whether the breathalyzer instrument test results met the required predicates for introduction into evidence. Because the defendant is unable to challenge the accuracy of the instrument or the test ampoules of simulator solution by the constitutionally mandated method of cross-examination of the person who performed the calibration/maintenance or analysis, introduction of the certification violates defendant’s right to confront witnesses. The People urge the analysis of the simulator solution and record of calibration/maintenance are simply governmental records kept by the New York State Police, which have been properly certified.

Civil Practice Law and Rules which codified the New York business records exception to the hearsay rule, is applicable to both civil and criminal cases. The law provides, in pertinent part, as follows: Any writing or record, whether in the form of any 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.

If the New York State Police documents are business/governmental records under CPLR, then they are admissible. If the documents are “testimonial” in nature, they are not admissible.

These records were made routinely and are needed and relied on by the New York State Police to conduct law enforcement. The records were made pursuant to protocol in a systematic procedure. The certifications were made within days of the reports and the reports were made the day of testing. These documents are not affidavits and were made before the July 8, 2005 arrest of the defendant. They are not testimonial nor specifically made for the prosecution of this case. This court is aware of recent cases to the contrary.

Accordingly, the breath test result (exhibit 5) showing defendant’s B.A.C. reading to be .21% is admissible. No drugs were found.

The Court is of the opinion that the defendant is guilty of operating a motor vehicle while her blood alcohol content was greater than .08%, in violation of the Vehicle and Traffic Law.

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