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CPLR Rule 4518


The defendant, during his alcohol related driving trial, opposed introduction of the foundational documents customarily offered to validate the admission of the results of a breath test and subsequently objected to the results being admitted due to lack of foundation. The defendant’s basis for the objections was his inability to exercise his constitutional right to confront the witnesses against him as outlined by the Supreme Court in Crawford v. Washington. As this was a bench trial, the court reserved decision and in the interests of judicial economy allowed the evidence to be introduced subject to submission of papers and rendering of this opinion. Following the trial, the court reached a partial verdict on all charges except the per se DWI or Driving While Intoxicated charge.

The court overrules the defendant’s objections to the admission of the breath test documents, allows their introduction into evidence and permits the breath test results to be considered by the court as fact finder.

Criminal defendants in New York enjoy co-existing state and federal constitutional rights to confront their accusers. In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him in accordance with the US Constitution, 6th Amendment, NYS Constitution Article 1, § 6. Since 1939, the state’s similar constitutional provision has provided that in any trial in any court whatever the party accused shall be confronted with the witnesses against him. This limited right of “confrontation” gave the defendant the opportunity to “reproach” or object to the testimony of a potentially biased witness.

The Crawford majority proclaimed that when assessing the admissibility of what it termed testimonial evidence against an accused the Confrontation Clause commands reliability be assessed in a particular manner, by testing in the crucible of cross-examination. Under Roberts reasoning, on the other hand, reliability of an absent declarant’s out-of-court statement could be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. However, the Supreme Court in Crawford found that Roberts’s analysis should not be used when the reliability of “testimonial” hearsay was being considered.

While the sub-set of “testimonial” hearsay will no longer be admitted at trial no matter how reliable it appears unless the defendant has already cross examined the maker of the statement, the court purposefully declined to specifically delineate exactly what the term “testimonial” meant. In doing so, the Crawford majority recognized that such a refusal to articulate a comprehensive definition in this case will cause interim uncertainty. The Court did, however, label a discrete group of four “core testimonial statements” as falling clearly under the Court’s rubric of “testimonial” DWI evidence.

The court notes that the term applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. Accordingly, those specific categories of formal and solemn written or recorded statements are inadmissible at trial unless the unavailability of the witness was due to the actions of the defendant.

The Court noted that the text of the Confrontation Clause applies to witnesses against the accused—in other words, those who “bear testimony.” “Testimony,” in turn, is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.

The court notes that not all evidence at trial qualifies as a solemn formal accusation. If, in the “testimonial” context, the phrase “for purposes of establishing or proving some fact” meant “proving any fact”, then certainly all nine justices in Crawford would not have exempted “business records” from the definition of “testimonial.” Other than the four solemn formal testimonial accusations which form part of the Confrontation Clause’s “common nucleus,” there was no unanimity regarding how far from the center “testimonial” radiates or even what formula should be employed to define its outer boundary.

While the DWI Court recognized several analytical models, it is important to remember that the Court did not endorse any one of them. Instead, the Court observed that all three frameworks represented “levels of abstraction around” the “core class of testimonial statements.” While all of those formulations would include the hearsay the Court placed at the Confrontation Clause’s epicenter, aspects of two of the approaches arguably fall outside the “testimonial” circumference and appear antithetical to the Crawford Court’s quest for constitutional consistency. Moreover, if used in isolation, they would create chaos.

Crawford’s brief suggested that the standard should not only encompass ex parte in-court testimony or its functional equivalent but also cover similar pretrial statements that declarants would reasonably expect to be used in prosecution. The alternative floated by the National Association of Criminal Defense Lawyers in its amicus brief would include all statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

DWI or Driving While Intoxicated foundational documents are not “testimonial.” The records are still out of court statements by an absent witness being offered for the truth of the facts asserted in them. They are classic hearsay. In fact, the People recognized as much when they offered the DWI or Driving While Intoxicated documents pursuant to CPLR Rule 4518, New York’s business record exception to the hearsay rule. While an easy answer to the question presented would favor admissibility since, as noted earlier, Crawford exempted business records from its definition of testimonial, this should be simplified.

The court notes that the Court of Appeals has consistently recognized that properly authenticated instrument calibration certificates, chemical analysis certificates and weekly test logs prepared by absent witnesses may be admitted in a DWI case pursuant to CPLR Rule 4518(c).

Consistent with the analysis first suggested in Roberts and permitted under Crawford for “non-testimonial” hearsay, the DWI foundational documents can be made available to a fact finder in a criminal case if the judge determines that the documents possess adequate indicia of reliability. Moreover, the reliability of some documents can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In this case, the People have asserted that the criminal DWI documents are business records and that the business records exception is firmly entrenched in our law.

The court finds that the foundational documents at issue here meet all those criteria. First, New York taxpayers need and rely on the labs to make sure that materials purchased with public funds are fit for their intended purpose. Thus, the State has a fiscal interest in making sure the chemicals are properly formulated and that the instruments function appropriately. In addition, the State has a due process interest in assuring itself and the public that the breath testing instruments and chemicals used by law enforcement produce accurate results. Lastly, our courts have held that before results of a breath test may be admitted in a DWI trial, the People must introduce evidence from which the trier of fact could reasonably conclude that the testing device was in proper working order at the time the test was administered to the defendant and that the chemicals used in conducting the test were of the proper kind and mixed in the proper proportion. For all of those reasons, New York State has established routine and periodic testing procedures for both breath test instruments and chemicals.

The fact that reasonable technicians might anticipated that certified copies of the results of their work might be offered into evidence at future trials involving the prosecution of a number of unknown individuals for crimes not yet committed does not mean these documents are inadmissible without their live testimony. Unlike business records created for the sole purpose of litigation which are not true business records and fall outside the hearsay exception, these documents have substantial non-litigation purposes.

In the analogous area of police car speedometer calibrations, our Court of Appeals has held. Of course, records prepared solely for the purpose of litigation should be excluded. However, if there are other business reasons which require the records to be made, they should be admissible. It appears that the speedometer deviation records should be admissible since they were not records made outside of the ordinary course of police department business, solely for the instant litigation. It is generally true that such speedometer tests are made at regularly scheduled intervals, and that the records kept are merely memorials of the fact that the tests were made and what the results were. This is a classic example of making records in the regular course of business; and, it is probably the regular course of police business in maintaining highway safety to make such records at the time of the test. While it is true that such records may later be used in litigation, such was not the sole purpose when they were made, and, therefore, they should not be excluded merely because this was a possible future use. Had proper foundation been laid for admission of the speedometer deviation record as a business entry, it should have been received in evidence as held in people v Foster.

In the Foster case, it was held that in finding admissible “linesheets” created during a wiretap unrelated to the investigation of the defendant trial for assault, the Court of Appeals found they were records made in the ordinary course of police business and they served an important administrative function in the daily conduct of a police surveillance operation. They were required to be made pursuant to a court order; their purpose was to maintain an inventory of the tapes and to safeguard them against tampering; and they were included in the progress reports that were filed regularly with the Judge supervising the wiretap order. Finally, the fact that their preparation was incidental to a police surveillance operation does not make them inadmissible as was held in People v Guidice.

In the case at bar, the People provided a sufficient evidentiary foundation for admission of the documents. Thus they are admissible and the fact finder’s focus shifts to the weight to be given them when challenged by a defendant through cross-examination or presentation of proof.

The same cannot be said, however, of the breath test operator’s supporting deposition or the “BAC DataMaster State of New York Evidence Ticket”, which was printed out by the instrument after the defendant’s breath test. Those documents relate directly to this defendant’s arrest. They memorialize the breath test that the People offer as circumstantial evidence of the defendant’s blood alcohol level at the time he was driving. The deposition was clearly prepared in a formal and solemn manner by a public officer to accuse this specific defendant accusing him of a particular offense. The printout is the hardcopy record of the defendant’s breath test. Thus, they are both “testimonial” under Crawford and are inadmissible at trial unless, as occurred here, the breath test operator is present and available for cross-examination by the defendant.

The DWI foundational documents are not “testimonial” under the Confrontation Clause and are admissible as business records in this proceeding.

New York DWI Attorneys, New York Criminal Attorneys and Stephen Bilkis & Associates may be relied on when faced with issues like the one mentioned above. Please do not hesitate to call our toll free number or visit our office. A team of experts are ready to extend their legal service.

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