The defendant was charged by simplified traffic informations on February 20, 2011 with Speeding, VTL 1180 (d), unsafe lane change, VTL 1128 (a), per se

driving while intoxicated, VTL 1192 (2) and common law driving while intoxicated, VTL 1192

(3). The matter was eventually set down for a bench trial. On the day of the bench trial the

defense counsel submitted a written motion in limine to suppress the breath test documents. As a

result, the trial was postponed in order for the court to rule on the motion.

The defendant's attorney was previously provided with four specific breath test

documents as part of the discovery process. Those documents were the "Instrument Record of

Calibration", "0.10% Reference Gas Record"^[FN1] and "Instrument Maintenance Records" and the

"New York State Police Breath Alcohol Analysis Record". The first three documents were [*2]

electronically generated by the New York State Police Forensic Investigation Center. The

"Breath Test Instrument Calibration Record was digitally co-signed by Stephen D. Berry, Highway Safety Equipment Technician and Breath Analysis Operator on September 8, 2010 and

by Carrie A. Kirkton, Forensic Scientist III and Breath Analysis Technical Supervisor on

September 9, 2012 and September 8, 2010, respectively. The "Breath Test Instrument

Maintenance Record" was signed by the same individuals on the same date. Attached to said

documents was a document entitled "Certified Copy (CPLR Rule 4518) Breath Test Instrument

Calibration/Maintenance Record Serial Number ARAF-0043, dated September 8, 2010", more

commonly known as "the certification", which was digitally signed on September 16, 2010 by

Jennifer F. Limoges, Supervisor of Forensic Services, Forensic Investigation Center. The

certification states as follows:

"I, Jennifer F. Limoges, Supervisor of Forensic Services, Forensic Investigation

Center, do hereby certify and authenticate, as provided by Rule 4518, subdivision

c, Civil Practice Law and Rules, that the document annexed hereto is an exact

copy of an electronic record of the New York State Police Forensic Investigation

Center which has delegated to my possession, custody and control by the

Superintendent of the New York State Police. This record was made in the

regular course of the Forensic Investigation Center business to make such a

record, and such record was made at the time of each event recorded in it

or within a reasonable time thereafter."

The third document, entitled the "0.10% Reference Gas Record"for "Lot Number:

759558" was attached to a document entitled "Certified Copy (CPLR RULE 4518) 0.10%

Reference Gas Record Lot Number 759558, Dated May 11, 2010", i.e. the certification, which

contains the same certification language as set out in the previous certification. This particular

certification was also signed by Jennifer F. Limoges, on May 5, 2011. This test was used in lieu [*3]

of a simulator solution.^[FN2] The "0.10 Reference Gas Record" itself was digitally co-signed by

Carrie A. Kirkton, Forensic Scientist III, Breath Analysis Technical Supervisor on May 11, 2010

and by Jennifer F. Limoges, Supervisor of Forensic Services, Breath Analysis Technical Supervisor on May 11, 2010.

The fourth document entitled "Breath Alcohol Analysis Record" was generated by the

breath test operator, which set out the results of the breath test of the defendant on February 21,

2011 between 12:25 A.M. and 12:33 A.M. It contained the electronic signature of the said

breath test operator. There is a preprinted certification on the face of that document which states

as follows:

"I do hereby certify and authenticate that this Breath Alcohol Analysis Record is the

original record prepared by the New York State Police; that it was made at or shortly

after the events recorded; that it was made in the regular course of New York State

Police business. This record has been delegated to my custody and control by the

Superintendent of the New York State Police.

False statements made herein are punishable as a Class A misdemeanor pursuant to

Penal Law Section 210.45".

The Breath Alcohol Analysis Record is different from the previous three documents in that the

person who generated that document will actually testify at the trial.

None of the documents in question had an original signature or a raised seal. The

defense counsel's motion states "The main crux of the Defense argument in support of this

motion in limine, is that the breathalyzer documents do not have a raised seal as required for

admissibility under CPLR Section 4539 (b)." That section states as follows:

"A reproduction created by any process which stores an image of any

writing, entry, print or representation and which does not permit additions,

deletions, or changes without leaving a record of such additions, deletions, [*4]

of changes, when authenticated by competent testimony or affidavit which

shall include the manner or method by which tampering or degradation

of the reproduction is prevented, shall be as admissible in evidence as

the original."

First of all that subsection makes no mention of the need for a raised seal. Second, CPLR

4539 only applies "If the document is to be introduced as the record of a private entity ...."

(Gerstenzang, Handling the DWI Case in New York Section 43:17 [2013-2014 Ed]).

Are the electronic breath test documents admissible without a raised seal?

"One of the documents the court had before it was essentially the same

as that used in New York case for the past 30 years. The other three

documents, however, contained new language not yet validated by our

courts in any reported decision. These three documents had neither

a pen and ink' signature nor a raised seal [emphasis added] over a

stamped inscription. Instead, they bore what looked like a twentieth-

generation Xerox copy of a signature. Above the signature was a

notation that the document was Digitally signed under ESRA...."^[FN3]

(Id. at 209, 825.) [*5]

Nevertheless, Judge Morse did not dismiss the two cases before him simply because three of the

documents did not have a raised seal. Instead he was more concerned with the process by which

the forms were created. In his decision he states " If there had been testimony before the court

regarding how the documents were created or if the authenticating certificate contained such

information, then the documents might have come closer to admissibility under CPLR 4518."

(Id. at 210, 826.)

"The admissibility of documents is one of the most confusing, complicated, and

contradictory areas of law confronting the trial lawyer." (Gertstenzang, Handling the DWI Case

in New York, Section 43:1[2013-2014 Ed]). The same is true for any trial judge. The

introduction of electronically stored and generated documents over the last few years has

definitely added to the confusion. This area of the law is governed by the Electronic Signatures

and Records Act [ESRA], which is found in Article III of the State Technology Law [STL]. The

ESRA gives someone called "the electronic facilitator" the power to promulgate rules consistent

with that law. (STL 303 [2] and 304 [1]). Section 304 (2) of the State Technology Law states

"In accordance with this section unless specifically provided otherwise by law, an electronic

signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic

signature shall have the same validity and effect as the use of a signature affixed by hand." (See

also People v. Corletta, 12 Misc 3d 666, 814 N.Y.S.2d 514 [NY Justice Ct. 2006]). STL

Section 305 governs the use of electronic records, and subsection 2 thereof states "An electronic

record shall have the same force and effect as those records not produced by electronic means."

Finally, STL Section 306 permits electronic records to be entered into evidence. That section

states: [*6]

"In any legal proceeding where the provisions of the civil practice law and

rules are applicable, an electronic record or electronic signature may be

admitted into evidence pursuant to the provisions of article forty-five of the

civil practice law and rules including but not limited to section four thousand

five hundred thirty nine of such law and rules."

STL Section 302(3) defines an electric signature to as being "... an electronic sound, symbol, or ,

process, attached to or logically associated with an electronic record and executed or adopted by

a person with the intent to sign the record."^[FN4]. Nothing in the Electronic Signatures Act requires that before an electronic record is offered as evidence it must bear a raised seal.

Nevertheless, the Court of Appeals has held that

"While the scientific reliability of breathalzyers in general is no longer open

to question ... there must still be either proper foundation testimony [emphasis

added] underCPLR 4518 (a) or a proper CPLR 4518 ( c) certificate to establish

that the particular instrument used to test a defendant's BAC and the ampoules used

with it had been tested within a reasonable period in relation to defendant's

test and found to be properly calibrated and in working order ...." (People v.

Mertz, 68 NY2d 136,148, 506 N..S.2d 290,296 [1986]).

CPLR 4518 (a) is the basic business records exception to the hearsay rule, which allows

documents to be entered into evidence "... 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."

The aforementioned CPLR 4518 ( c) allows for the admissibility of business records,

electronic or otherwise, and that they "... are prima facie evidence of the facts contained,

provided that they bear certification or authentication by the head of the hospital, laboratory,

department or bureau of a municipal corporation of the state, or by an employee delegated for

that purpose or by a qualified physician." [*7]

As a practical matter there are three elements required to be proven in order to establish a

proper foundation for the breath test results. They are as follows:

"(a) that the device was properly calibrated and otherwise in proper working order;

(b) that any chemicals used in conducting the test were of the proper kind and

mixed in the proper proportions; and

( c) that the test was properly administered." (Gerstenzang, Handling the DWI Case

in New York Section 42:3 [2013-2014 Ed])."

The remaining portion of CPLR 4518(a) indicates that the entry of the breath documents into

evidence does not establish the intoxication of the defendant only that the documents were

properly completed. The remaining portion of CPLR 4518 (a) states that

"An electronic record, as defined in section three hundred two of the state technology law, used or stored as such a memorandum or record, shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record. The court may consider the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record. All other circumstances of the making of the memorandum or record, including lack of personal knowledge by the maker, may be proved to affect its weight, but they shall not affect its admissibility. The term business includes a business, profession, occupation and calling of every kind."

The electronic documents at issue herein are admissible. They satisfy the requirements of

CPLR 4518 (a). Furthermore they are all accompanied by a certification as required by CPLR

4518 ( c). Each of the documents, including the certifications, contains an electronic signature in

accordance with the State Technology Law. Neither the Civil Practice Law and Rules nor the

State Technology Law requires a raised seal on the breath test documents in order to make them

admissible into evidence. Therefore the defendant's motion in limine requesting that the breath

test documents be suppressed for failure to bear a raised seal is hereby denied. This constitutes

the decision and order of this court. [*8]

Webster, New York

__________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice