Rochester City Court finds DWI foundational documents admissible

Since the U.S. Supreme Court's ruling in Crawford v. Washington, 541 US 36 (2004), courts have been required to determine whether an out-of-court statement or document is testimonial or non- testimonial when faced with the issue of a defendant's rights under the Confrontation Clause.

In a recent decision by Rochester City Court, People of the State of New York v. Paul Fisher, Judge Thomas Rainbow Morse ruled the results of certain DWI foundational documents (i.e., certificate of calibration for the breath test instrument, simulator solution analysis and weekly instrument test records) were not testimonial under the Confrontation Clause.

Judge Morse also determined the DWI documents were considered business records under the exception to the hearsay rule. Therefore, the judge allowed the foundational documents to be admitted into evidence.

Case Background

The case centered around DWI foundational documents which were offered by the prosecution to validate the admission of the results of a breath test. The documents included a certificate of calibration for the breath test instrument, a simulator solution analysis and weekly instrument test records.

The defendant, Paul Fisher, objected to the admission of the DWI foundational document based on his rights under the Confrontation Clause of the U.S. Constitution. Fisher was stopped for DWI by the Rochester Police Dept. and later given a breath test.

Because it was a bench trial, the court reserved its decision and allowed the evidence to be introduced subject to submission of papers. Following the trial, the court reached a partial verdict on all charges except the DWI charge, New York Vehicle and Traffic Law Section 1192(2).

Confrontation Clause, Case Law

The Confrontation Clause of the Sixth Amendment to the U.S. Constitution states: In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.

In 1980, the U.S. Supreme Court in Ohio v. Roberts, 448 US 56 (1980) established a two-prong test for applying the Confrontation Clause to hearsay evidence: (1) the unavailability of the declarant or witness, and (2) if the hearsay being offered possessed an adequate indicia of reliability. The court also held that any hearsay that fell into the exception to the hearsay rule was admissible under the Confrontation Clause.

In 2004, the U.S. Supreme Court in Crawford v. Washington, held the Confrontation Clause limited the admission of prosecution testimonial evidence and that non-testimonial evidence was governed by evidence rules, not the Confrontation Clause.

The high court explicitly stated that any evidence that was testimonial in nature was not permissible as a hearsay exception unless the actual witness testified at trial. However, the court failed to define testimonial, resulting in courts across the country having to make that determination for themselves.

As guidance, the Supreme Court in Crawford suggested that an accuser who makes a formal statement to government officers has made a testimonial statement and that one of the hearsay exceptions that are not considered testimonial included business records.

DWI Documents

Based on the Confrontation Clause and the case law, Judge Morse ruled the DWI foundational documents were not testimonial and were considered business records under the exception to the hearsay rule.

In particular, the judge noted the documents did not accuse Fisher of any offense but showed the reliability of the instrument used to test Fisher's breath. For example, the calibration certificate and certification of analysis of the simulator solution related to tests performed before Fisher was given the breath test or arrested for DWI.

Thus, in a Sixth Amendment sense, neither the technicians nor those who certified their test results as business records can be construed as bearing 'witness against' this particular defendant under Crawford, explained Judge Morse.

The judge also determined the weekly simulator solution test logs which bracketed the date of Fisher's breath test were non- testimonial based on the fact that the tests were performed routinely and scheduled irrespective of the administration of Fisher's breath test.

All of those documents are foundational, wrote Judge Morse. They do not constitute evidence of the defendant's actions or his physical or mental condition. Instead the documents are offered as evidence tending to prove the reliability of the instrument used to test the defendant's breath.

In fact, they would be just as relevant in a DWI case where the defendant's BAC level was .02 percent as they would be in a case where it was alleged to be a .20 percent because the breath test instrument is a screening device which may be used to charge a person with a misdemeanor, with a violation or used to completely exonerate an individual, continued the judge.

In contrast to the DWI foundational documents, the court pointed out a deposition by the breath test operator and the BAC DataMaster State of New York Evidence Ticket, which was printed out by the instrument after Fisher's breath test, were testimonial since they related directly to Fisher's arrest.

The deposition was clearly prepared in a formal and solemn manner by a public officer to accuse this specific defendant ... of a particular offense. The printout is the hardcopy of the defendant's breath test, wrote the court. 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.

In addition to finding the foundational documents did not fall into the same testimonial category as the deposition of the breath test operator or the hardcopy of Fisher's breath test, the court noted the foundational documents could be admitted into evidence since they met the business record exception to the hearsay rule. For example, the New York State Court of Appeals has recognized that properly authenticated instrument calibration certificates, chemical analysis certificates and weekly test logs may be admitted in a DWI case pursuant to CPLR Rule 4518(c), see People v. Gower, 42 NY2d 117, 121 (1977); People v. Farrell, 58 NY2d 637, 638-39 (1982).

Court's Ruling

In conclusion, the court held the DWI foundational documents were not testimonial under the Confrontation Clause and that they were admissible as business records.

[T]he 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, ruled the court.

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