New York Family Law Blog
This is a proceeding wherein the defendant is charged with one (1) count of violating Vehicle and Traffic Law §1192(4), Driving While Ability Impaired by Drugs as an Unclassified Misdemeanor.
A New York Family Lawyer said the court presided over a Jury Trial from 31 March 2008 through 3 April 2008. The People called five witnesses, A, B, C, D and E at trial. After the People rested, the defendant made a motion for a Trial Order of Dismissal. The People contested the defendant’s motion. The basis of the defendant’s motion was the failure of the People to have the defendant’s urine test results admitted into evidence, thereby failing to establish a prima facie case against the defendant. The People argued that the urine test results should have been received into evidence. The defendant’s motion for a Trial Order of Dismissal was granted by this Court.
A New York Custody Lawyer said the court finds that the People’s failure to properly establish the foundational requirements for admission of the urine test results is fatal in the prosecution of a Driving While Impaired by Drugs case. Therefore, defendant’s motion for a Trial Order of Dismissal must be granted.
The court notes that the People established a chain of custody with respect to the urine container from the point that Sgt. A received the urine container from the defendant until the point when the urine container was received at N.M.S. Testimony was elicited that Sgt. A received the urine container from the defendant, sealed it, labeled it, and put it into the Toxicology refrigerator.
Next, a Suffolk County Family Lawyer said the Detective B retrieved the urine container from the Toxicology refrigerator in the same exact physical condition that it was left in by Sgt. A. Detective B then mailed the urine container to N.M.S.
Ms. E testified that she received the urine container in the mail at N.M.S. in a sealed condition. She unsealed the urine container and removed a sample from the urine container using a pipette. That sample was placed by her into test tubes, labeled, and placed in a N.M.S. refrigerator.
A Suffolk County Custody Lawyer said the original urine container was then resealed and kept separate to be returned to the Nassau County Police Department. Ms. E identified the urine container, which she was shown in Court, as the same urine container which she received at N.M.S., opened, removed a liquid sample from and resealed. She identified it as being in the same exact sealed condition that it was in the last time she handled it. Hence, based on the testimony of Ms. E, together with the testimony of Sgt. A and Detective B, the chain of custody regarding the urine container was established and the urine container was admitted into evidence.
However, the court finds that although the People established a chain of custody with respect to the original urine container, the People failed to establish any chain of custody regarding the sample that was removed from the urine container by Ms. E and allegedly tested. The fact that the People admitted into evidence the original urine container did not satisfy the chain of custody with respect to the test tube samples.
Moreover, the People failed to call any witnesses to explain what happened with the test tube samples after they were placed into the N.M.S. refrigerator by Ms. E. No witness testified that the test tube samples were ever removed from the N.M.S. refrigerator. If they were removed, no witness testified when the test tube samples were removed, by whom, and in what condition. The admission of the People’s evidence at trial consisted of an untested urine container. As a direct result of the People’s failure to establish a chain of custody with respect to the test tube samples which were allegedly tested, the urine test results could not be admitted into evidence.
The court further finds that the problems with the chain of custody regarding the test tube samples are exacerbated by the fact that there was no specific testimony as to the alleged testing of the samples. No witness with personal knowledge testified that the test tube samples were ever tested. No witness testified how the test tube samples were tested or how any of the test results were obtained. No witness testified that the rules and regulations of the Department of Health with respect to the testing were followed, as required by Vehicle and Traffic Law Section 1194(4)( c).
It should be noted that the only witness called by the People regarding this issue was Dr. C who only testified how urine tests are generally performed at N.M.S. Dr. C did not personally perform any tests with respect to this case, nor was he present when any tests were performed. He could not testify that the test results which he reviewed were in fact of the test tube samples drawn by Ms. E.
The People maintain that the testimony of Dr. C should satisfy the foundation requirements for the admission of the urine test results.
To the contrary, the court finds that it was incumbent upon the People to present testimony and direct evidence during the trial regarding the specific urine tests performed in this case. The court holds that generalized testimony as to how urine tests are normally performed given by a testifying witness having no personal knowledge pertaining to how the tests were actually performed on the urine sample in question is insufficient as a matter of law to justify the admission of urine test results into evidence.
The court finds that a piece of paper summarily stating that chain of custody has been followed, without more, is insufficient to establish same in a Court of Law where a defendant is being prosecuted for a criminal offense. The court holds the People’s failure to establish the requisite chain of custody regarding the test tube samples, together with a complete failure to present any direct testimony regarding the tests allegedly performed, precludes the admission into evidence of the defendant’s alleged urine test results.
Next, notwithstanding the fact that the three hundred page N.M.S. litigation package was replete with hearsay and irrelevant documents, the People argue that the voluminous N.M.S. litigation package should be admitted into evidence as a “business record.”
It is the People’s contention that their position is supported by the recent New York Court of Appeals decision in People v Rawlins and People v Meekins. The defendant argues that the admission of the urine test results violates her right of confrontation established by the Sixth Amendment to the United States Constitution. The defendant asserts the urine test results should not be admitted into evidence unless the person who performed the urine tests is available to be cross-examined.
The court refuses to accept what it finds to be the People’s attempt to circumvent the evidentiary foundation requirements for the admission of defendant’s urine test results.
The Confrontation Clause of the United States Constitution requires that defendants be able to confront and cross-examine witnesses against them. The Sixth Amendment to the Constitution, commonly referred to as the “Confrontation Clause” provides, in pertinent part:
“In all criminal prosecutions, the accused shall enjoy the right xxx to be confronted with the witnesses against him xxx.”
Also, in Crawford v Washington, the court held that “testimonial” evidence could not be admitted unless the declarant was unavailable to testify at trial, and there had been a prior opportunity for cross-examination. Thereafter, in Davis v Washington, the Court elaborated on Crawford by emphasizing that each case is fact specific and requires a fact intensive inquiry and scrutiny when evaluating the confrontation question.
New York’s business record exception to the hearsay prohibition, C.P.L.R. § 4518(a), provides:
“Any writing or record, whether in the form of an 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 after.”
It should be noted that this exception permits a business record to be admitted into evidence under appropriate circumstances, but categorical exemption of business records is a “fundamental misreading of Crawford.
Thus, the court holds that although business records may be admitted into evidence, there is no per se requirement that business records be admitted into evidence without limitation or redaction. In fact, business records which are irrelevant, contain hearsay, or are prejudicial, are properly excluded from evidence.
The business record exception has been used as a tool to obviate, in certain circumstances, the need to meet the strict formal requirements of the rules of evidence regarding the admission of various documents.
In the Rawlins/Meekins cases, the Court of Appeals opined that a bright line rule did not apply in determining whether law enforcement records were “testimonial” for confrontation clause purposes. In Rawlins, the defendant was convicted of numerous commercial burglaries. The Court of Appeals held that latent fingerprint reports prepared by a police officer, offered to establish a defendant’s identify in a burglary prosecution, were testimonial — thereby triggering the right to confrontation. In Meekins, the defendant was tried and convicted of first degree sodomy based on a DNA comparison. The Court of Appeals ruled that the DNA comparison reports generated by the independent private laboratory containing results of DNA testing conducted on samples taken from the victim’s rape kit, were not testimonial — thereby not triggering the right to confrontation.
The People’s reliance on the Rawlins/Meekins decision to support their position that an out of state laboratory test of defendant’s urine should be uniformly admitted into evidence as a business record is misplaced. The Court of Appeals clearly established that the results of tests which are accusatorial and which go to the guilt or lack of guilt of the defendant do not come into evidence as business records.
Moreover, central to the Court of Appeals’ decision was that trial courts must make an individualized determination whether the offered report is a “surrogate for accusatory in-court testimony,” if so, then it violates Crawford.
In the case at bar, the results of the urine tests are both testimonial and accusatory since positive urine tests results -combined with the testimony regarding the defendant’s operation of her vehicle, would result in the defendant being found guilty of Driving While Impaired by Drugs. As such, this Court’s ruling is in line with the Court of Appeals’ decision in Rawlins/Meekins by holding that the defendant’s alleged urine report is testimonial and its introduction into evidence would certainly violate the Confrontation Clause of the Constitution.
The court observes that to accept the People’s reasoning for admission of the defendant’s urine results under the business records exception to the hearsay rule would defy the reasoning of the Court of Appeals in Rawlins/Meekins and essentially permit documentary evidence to be admitted wholesale just because it fits a “business records” criteria.
Further, if the urine tests result were admitted into evidence as a business record, then an Intoxillyzer breath card in a Driving While Intoxicated case would come into evidence as a business record without a witness to testify as to how the test was performed and how the result was obtained. Similarly, the results of a blood test in a Driving While Intoxicated case would also come into evidence as a business record without satisfying the specific requirements of Vehicle and Traffic Law Section 1194. This reasoning could then be extended to cases where a complainant’s supporting deposition would come into evidence as a business record without the complainant even appearing in Court to testify.
Lastly, if the Court adopted the People’s reasoning, prosecutions could be based solely on sworn statements and paperwork and not live witnesses.
The court will not stretch the foundational requirements for the admission of evidence, and will not bypass the explicit provisions of the Sixth Amendment to the Constitution. For the aforesaid numerous reasons, the defendant’s urine test results in this case cannot be admitted into evidence, and certainly not as business records.
Accordingly, the court grants the defendant’s motion seeking a Trial Order of Dismissal.
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