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Fiandach & Fiandach (Rochester NY)

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DataMaster Program in Serious Jeopardy

February 13, 2008

How many times have you seen your assistant district attorney raise the DataMaster inspection certificate and declare that the instrument was calibrated just one week prior to your client's arrest? Did you object? Of course not C but maybe you should have. In hearings held on June 10, 2002, in the Penfield Town Court, Lisa A. Lee equipment technical supervisor for the Department of Criminal Justice Services declared that a majority of the certification certificates used by the state do not indicate calibration even though, since the inception of the DataMaster program, that is what was plainly inscribed on the forms. But first some background.

In seminars we have given around the state, as well as in the Bulletin, we have stressed the value of building complete maintenance histories on each machine. In the course of pursuing this objective, we began to notice, with increasing familiarity, certification forms that bore the inscription N/A under the heading general appearance and condition of this device. When the inimitable Susan Nimnum, a paralegal who heads our firm's quality assurance program, pointed this out, we were perplexed. How could the appearance and condition of the device be non-applicable? What we had guessed ultimately turned out to be the case. The certificates bearing the comment N/A were prepared remotely by using the integral modem capabilities of the DataMaster.

As we have previously reported, the DataMaster has the ability to store test result data for downloading to a central computer. What we did not fully understand, however, was that the DataMaster has the capability to run diagnostic applications through the auspices of a remote computer that is connected by means of a telephone line.


Our immediate concern about this remote diagnostic system stemmed from what appeared to be the desire of the Bureau of Municipal Police to pigeon hole the remote diagnostic technique to fit the certification forms that have been in use since the days of the BreathalyzerJ. As we reported in 6 NY DWI Bulletin 22, the mainstay of the inspection and calibration program is the Breath Test Instrument Record of Calibration/Maintenance. This form, which consists of six numbered items, asks the appearance and condition of the device, four enumerated functions (usually indicated as OK) and a sixth heading which requests a listing of any repairs performed on the device. In the field, this form will be attached to a calibration report which will set forth the results of four different tests performed with a single enumerated simulator solution. A Breath Test Instrument Record of Calibration/Maintenance for a modem calibration met all these parameters with the exception of the fact that the condition and appearance were reported as N/A or not applicable. Aside from the lack of a physical inspection, it appeared to be identical, indicated that the machine was calibrated and was accompanied by a report of four simulator tests.


This, of course, raised a crucial evidentiary problem rooted deep within the manner in which a DataMaster is calibrated. Calibration of a DataMaster is a fairly simple procedure and is accompanied by entering a password protected function code. The LCD screen on the face of the machine will then request that the operator enter the strength of the simulator solution being used, such as .08 or .10. After several confirmatory procedures, the machine will then pump simulator vapor into the sample chamber. It will analyze the vapor for the amount of infrared energy absorbed and memorize the result. This result will then become the benchmark from which the machine extrapolates all future test results. The obvious, but ultimately unfounded concern that emerged was, since the calibration was being done remotely, such would be dependent upon the operator at the station where the DataMaster is located installing the appropriate solution. At a minimum, the declaration contained in the calibration report that a particular simulator solution was used would be inadmissible hearsay.

In a matter entitled People v. William K. Rowley, a pre-trial motion was filed in November of 2001, in the Penfield Town Court. The motion sought a pretrial hearing on the issue of remote calibration. The contention raised by affidavit was essentially that, in the absence of some mechanism to assure that the simulator solution used during the remote calibration process was verified, all certificates of calibration/maintenance were invalid for the reasons set forth above. In response to the motion, an affidavit furnished by Robert C. Benac, employed by the New York State Division of Criminal Justice Services as its Director of Breath Analysis Program and as a qualified technical training supervisor, set forth the following:

7. Periodic independent testing of a DataMaster instrument is conducted remotely by DCJS to verify whether the instrument is in proper working order and calibration. This service is separate from and in addition to the testing protocols employed by the law enforcement agency which uses the instrument. Part of this DCJS testing requests the instrument to analyze a simulator solution which is known to have a .10 BAC value. Although the instrument being tested can be said to "read" this solution, defendant is factually wrong in asserting that this reading is then used to re‑set the instrument's calibration.

 

8. As noted, the DataMaster instrument is physically incapable of being re‑calibrated except by trained technicians at a specialized facility. During a remote DCJS test, the instrument is only capable of analyzing the simulator solution and reporting its result. It does not and cannot store that result as any sort of "benchmark" for future reference during subject tests. If the result reported is within the accepted tolerance, DCJS verifies that the instrument remains in proper calibration through the issuance of an appropriate certification. If not, the user is advised that the instrument is in need of repair and should be brought to DCJS for service.

 


The upshot of Mr. Benac's affirmation was that the DataMaster, as utilized in the New York DCJS program, cannot be calibrated via a modem connection. This allegation, of course, raised significant questions. The certificate of calibration/inspection dated March 23, 2001, for machine 950412, set forth under heading 6 (repairs) the term calibrated. This seemed to indicate the contrary of what had been set out in the Benac affidavit.

Following receipt of the Benac affidavit, our office began routinely seeking adjournments in DataMaster cases, with special attention upon those utilizing machine number 950412. We supported the request for an adjournment with a copy of the Benac affidavit and argued that utilization of this or a similar certificate at trial would be highly prejudicial, deny the defendant of his or her Fifth and Fourteenth Amendment right to Due Process of Law and that undoubtedly the veracity of the certificate was seriously in question.

Of particular concern to the court at the time of heated argument was the point that if remote calibration could not be performed and if the defense could establish that the questioned certificate was the product of a remote procedure, then use of the certificate would present serious issues at the time of trial. Provided the defense could provide proof that the March 23, 2001 certificate was the product of a remote procedure, the court (Lomenzo, J.) would order a hearing on the limited issue of the procedures employed during remote calibration.

This last concern of the court was met with a letter dated June 15, 2001, from Valerie Friedlander of the State of New York Division of Criminal Justice Services, records access officer, which set forth the following:

This is in response to your Freedom of Information Law request for the Service Authorization Form for the March 29, 2001 calibration of DataMaster Instrument Serial Number 970073. As we previously advised you, there was no Service Authorization Form for the calibration performed on 3/29/01 because it was done by remote calibration.

[Emphasis supplied herein.]

 


After several adjournments, on June 10, 2002 a hearing was held in the Penfield Town Court. At that time, the People called Lisa A. Lee as their first and only witness. Ms. Lee set forth that she is the equipment technical supervisor for the Department of Criminal Justice Services. While portions of the hearing, such as the effort of the assistant district attorney to have the witness explain why the DataMaster is an instrument and not a machine, were truly laughable, the hearing quickly took on a fierce and combative tone. While Ms. Lee testified for approximately four hours, her testimony may essentially be summed as follows:


Initially, Ms. Lee verified the allegation contained in the Benac affidavit that the DataMaster can not be calibrated remotely process. In sum and substance, the remote process, whereby the subject DataMaster is connected to a master DCJS computer by means of a telephone line[i], is able to download data from testing, data from field testing and data from machine generated diagnostics. Further, she testified that on a command issued from the master computer located at DCJS, the machine would perform simulator tests. According to Ms. Lee, the data generated by that function and test are the source of the four tests that appear on the first page of the calibration/inspection report. Ms. Lee was vigorously cross-examined with approximately 14 DCJS calibration/inspection certificates from our quality control library. When confronted by this writer as to why the term calibrated was included under heading A6" (repairs) on the overwhelming majority of these reports C notwithstanding her testimony that the machine was not calibrated on such occasions C Ms. Lee responded that such term was intended to mean verification of calibration. Further, Ms. Lee testified that DataMasters are calibrated at the factory[ii] and are not calibrated by the State of New York absent a catastrophic event such as a lightning strike or major repair which would cause the machine to lose calibration. When pressed by both defense counsel and the court, Ms. Lee acknowledged that the use of the term calibrated may be misleading to some and cause misunderstanding. When asked why this was done, she seemed to be of the opinion that it began in a manner which drew upon prior experience.

Importantly, Ms. Lee testified that even when machines are physically brought to Albany, they are not routinely recalibrated unless required by the circumstances set forth above. Hence, the difficulty with the declaration that a particular machine has been calibrated runs further than those machines which were inspected via the remote procedure. In short, virtually every certification which bears the declaration calibrated is suspect. On re-direct examination Ms. Lee claimed that one could determine whether a machine which was inspected had actually been calibrated by a review of the procedures that had been employed. However, when pressed with calibration/inspection reports setting out a variety of repairs, Ms. Lee failed miserably at being able to determine whether calibration was required or performed.

Whatever merit there may otherwise be to Ms. Lee's assertion that the term calibrated merely means that DCJS has actually verified calibration, is totally washed aside by the first page of the calibration/inspection report. On this page, a technician, such as Michael J. Hess, sets forth that I hereby certify that I have calibrated and performed necessary maintenance procedures.


The final issue is raised by the logistics of the modem verification process. As all of us know, calibration (or verification of calibration, for that matter) requires that a solution of a known value be used to determine whether the machine is performing correctly. This is always met by using a so-called simulator solution which has been certified by the state. When this test is conducted personally, as it is in the laboratory, this requirement is easily met. When however, verification is done remotely, a major evidentiary roadblock is encountered. Indeed, it was our suspicions over this procedure that led to our opening this interesting kettle of fish. Ms. Lee testified that the simulator solution lot number that appears on the calibration/inspection report is derived from that which is electronically stored by the DataMaster at the remote location. In other words, the BTO in say, the Town of Bedford Falls, will enter the simulator solution lot number in the DataMaster. It will be this information which will be imparted to the operator of the central computer. This number is then compared with the simulator solution that DCJS requires to be in use for a specific period of time. Two problems arise here. Firstly, although the certificate of calibration/inspection is received as a business entry exception, inadmissible hearsay with in that document is not (see, Johnson v. Lutz, 253 NY 124, 170 NE517). The declaration of which simulator solution would not qualify as admissible hearsay under any stretch of the imagination and, further, the source is most likely unknown. Secondly, there is the possibility that an unscrupulous BTO may simply enter the DCJS mandated simulator without actually installing the solution. Indeed, Ms. Lee acknowledged that she could not rule out such a situation.

Three conclusions can be drawn. First, virtually all DataMaster certificates presently in service fail to meet Donaldson's requirement of calibration (see, People v. Donaldson, 36 AD2d 37, 319 NYS2d 172 (4th Dept. 1971). Second, any attempt to utilize the certificates creates serious ethical problems for the prosecution.[iii] By simply furnishing your District Attorney's Office with a copy of the Rowley transcript you are placing him or her on notice that the proffer of such a certificate will involve the use of documentary evidence which is misleading or worse yet, false. Third, the issue will not vanish by the simple expedient of issuing new certificates inasmuch as such certificates will no longer have been made in the regular course of such business . . . [or] . . . at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter (CPLR 4518[a]). What's more, the new certificates will not be made in the ordinary course of business, but will have been prepared for the purpose of litigation.


The court is yet to rule in the Rowley matter, but most likely, the Rowley ruling will not prove dispositive. Anyone old enough to recall our Systems Innovations litigation that disabled the BreathalyzerJ testing program in the early nineties will also recall that in the first matter at which the former employee testified, People v. Urquhart, the defense lost.

Finally, we have only touched the surface of where this litigation will ultimately lead. As noted by our offices's local court/DMV liason, Vera Young, if defense counsel has collected copies of the certifications used in his or her area, such, when combined with the Rowley transcript, may bar suspension pending prosecution when sought under Vehicle and Traffic Law ' 1193(2)(e)(7). There also remains questions of prior convictions. Weren't those convictions engineered by means of evidence which, as we said above, is false or at a minimum recklessly misleading?

The transcript of the hearing has been ordered and will be made available at a price yet to be determined along with a sample pre-trial motion.

What should you do in the interim? At a minimum you must object upon the admission of the certificate of calibration/inspection. You may wish to bring a pre-trial motion based upon the testimony on the Rowley hearing. The motion should be one in limine seeking resolution of this issue outside the prejudicial format that the trial would unquestionably provide. Finally, do not plead guilty unless and until you have viewed the case as though it is a refusal devoid of the inference that would ordinarily arise. Looking back to People v. Uruburu, 169 AD2d 20; 571 NYS2d 965 (4th Dept. 1991), lv. denied 78 NY2d 1082, 577 NYS2d 246, 583 NE2d 958, the facts of that case could not have been much worse. Uruburu involved a .17 BreathalyzerJ test and the defendant was alleged to have struck a vehicle with considerable force from behind at an intersection.


What will the State argue in opposition? Two arguments are expected. Initially, it will obviously argue that the term is correct; that is, calibrated means that the technician verified the proper calibration of the machine. Two points should be stressed when confronted thusly. In the first place, the term is grossly misleading. Neither a judge nor a jury (or for that matter even Ms. Lee) will be able to tell from the face of the document that the machine had not, in fact, been calibrated. The People's position on this issue is further weakened by the fact that the only admissible item of proof on this point, the certificate of calibration/inspection, simply says calibrated. These documents, offered as they are, in lieu of testimony, must speak for themselves. There is simply no basis whatsoever, in any given instance, upon which to argue that the term calibrated really means verification of calibration.


The second argument we perceive, at this point, is one of weight. The People can be expected to argue, as they did in the silver nitrate cases, that the error in the certificate goes to weight not admissibility. In this regard, they can certainly be expected to cite People v. Daily, 260 AD2d 81, 700 NYS2d 307 (4th Dept. 1999), 6 NY DWI Bulletin 24, a Fourth Department silver nitrate decision that found the issue of weight to be dispositive. The problem is that neither weight nor Daily is a good fit. Even the most rudimentary examination of the silver nitrate issue will show why. Those cases also involved a statement on the certificate of calibration/inspection, but that is as far as the similarity goes. The claim in the silver nitrate cases was that because the certificate reported silver as present instead of silver nitrate, the documents were inadmissible. The essential problem with this argument however, was that the declaration silver was actually correct. All that was needed as a catalyst to speed the chemical process in the ampoule was the presence of the silver in an ionic form. It was the presence of silver, not nitrate, that sped the reaction. A silver ion can be produced through a number of different compounds. Further, to cause the silver to be in the solution, it had to be in an ionic form. Thus, in the silver nitrate situation, the certificate was correct.

Now contrast Daily with People v. Uruburu, 169 AD2d 20; 571 NYS2d 965 (4th Dept. 1991), lv. denied 78 NY2d 1082, 577 NYS2d 246, 583 NE2d 958. In Uruburu, the same court held that evidence adduced at trial which established that the certificate was untrue [as a result of the falsification of the lot verification process by the Systems Innovation plant] disrupted the presumption of regularity inherent in the certification process.

In this situation, the haphazard use of the term calibrated when the machine, as a factual matter was not calibrated, fatally disrupts the necessary showing of regularity. In all actuality, it is the facial falsity of the document that we believe would lead to its undoing in the Daily/Uruburu court. Note the following declaration from Daily where the court actually distinguished its holding from that in Uruburu:

Contrary to defendant's contention, the submissions challenging the identification of silver rather than silver nitrate as the catalyst in the record of analysis did not so undermine the probativeness of the People's foundational evidence as to render the breathalyzer test result inadmissible (see, People v. Pantaleo, 141 Misc2d 251, 255, 536 NYS2d 369; cf., People v. Uruburu, 169 AD2d 20, 22, 571 NYS2d 965, lv. denied 78 NY2d 1082, 577 NYS2d 246, 583 NE2d 958). Defendant's submissions on the motion raise issues concerning the reliability of the record of analysis but do not negate its probativeness (cf., People v. Uruburu, supra, at 25, 571 NYS2d 965). Thus, the record of analysis was properly admitted as "evidence from which the trier of fact could reasonably conclude * * * that the chemicals used in conducting the test were of the proper kind and mixed in the proper proportions" (People v. Freeland, supra, at 700, 506 NYS2d 306, 497 NE2d 673; see, People v. Alvarez, supra, at 380, 521 NYS2d 212, 515 NE2d 898).

[Emphasis supplied herein.]

 

The probative value of the certificate is irretrievably shattered. To hold that Daily and not Uruburu controls would make a mockery of the certification process and the trial itself.

Notes


 

 

Here We Go Again: An Editorial

by Edward L. Fiandach

 

It is ironic that the Rowley hearing was held almost eleven years to the day that the Fourth Department put the cap on the crushing blow we dealt to New York's breath testing program as a result of the Systems Innovation controversy. Just as ironic is that such an incredible fiasco has been permitted to occur again. While many will blame government and the patently mediocre methodology that it uses to accomplish even the simplest goals, my feeling is that we must look deeper if we are to find the underlying cause of these repeated catastrophic failures.

While I imagine that for the next year or so the pages of this journal will be filled with tortured arguments dealing largely in semantics such as what calibrated means, the fact remains that since 1997, the year in which Ms. Lee testified that remote verification of calibration was first accomplished with a machine located in Colonie, New York, thousands of Assistant District Attorneys have pointed out to judges and juries that the instrument was calibrated within six months of the defendant's test. Well, it just isn't true. In fact, the machine may not have been calibrated for several years prior to the arrest.


So how do these things happen? In the Systems Innovation controversy, no one was minding the store. Prior to an appearance of an article in the New York Times on December 27, 1987, no one from the State of New York had thought to inspect the manufacturing facilities or to engage in any testing that verified the validity of the lot selection/verification process. The present situation however, is worse. While some may piously declare that reasonable minds may differ as to the meaning of the word calibrated, one need only think back to the last trial he or she had to recall the incredible boost the assistant district attorney recieved when he or she declared that the machine had been recently calibrated. In the final analysis, the declaration which has been blithely reproduced since the introduction of the DataMaster in New York is, in a word, perjured.

While some would fully place the blame upon the immediate party responsible for the error, the Bureau of Municipal Police, I cannot concur. Attorneys charged with the litigation of these offenses, defense and prosecution alike, have been empowered with gatekeeper responsibility. It is in this gatekeeper responsibility that we have all failed.

Since I appeared on the scene, I have stressed in my lectures, books and in this Bulletin, that we cannot and must not rely upon DCJS and related agencies to uphold the validity of breath testing programs in the State of New York. This, and its related analog at the New York State Police, simply lack the necessary motivation to question whatever may be the police procedure de jour. Even so, others have managed to successfully foster the impression that the defense is somehow partnered with DCJS; that DCJS is an independent ally in the quest for truth, always ready to satisfy our every need or concern. This attitude, which has malignantly been permitted to pass for trust, has successfully dislodged all of us, defense and prosecution alike, from our gatekeeper obligation.


Verification of the foregoing lies no deeper than an analysis of present events. Although Systems Innovation did not come crashing down until our office located an affidavit given OSHA by a former Systems employee, the present mess involves outright dereliction of duty. Ms. Lee testified that the remote certification program began several years ago with the successful check of a machine located in the Albany, New York area. Yet it was not until western New York came on line that the issue emerged.

And the problem runs deeper. Simulator certificates that blithely declare that solutions are appropriate for use and the use of a single low point system of verification, all highlight the distance which New York's version of forensic science has journeyed from its scientific roots.

Further, the anticipated response of the system will, I am sure, be ample proof of the need for change. District Attorneys will adopt the spoon fed response of DCJS notwithstanding that the continued use of these certificates raises serious ethical questions. OCA's resource center, itself a state run agency, will unquestionably bend over backwards to find a rationale under which the judges, who depend upon it, may declare that the term calibrated will mean verification of calibration to the juries that have been intrusted with a sacred Fifth Amendment right.

The fact that this firm has exposed a fatal system error twice in virtually ten years means that something must be done. That something is an independent watchdog agency which is mandated with overseeing the performance of state forensic agencies.

Of course, the present issue involves drunk drivers. That fact alone will most likely prevent this or any governor from cleaning this corner of his executive house. Thus, we must be wary. In our search for the truth, we must shed our deeply intoned friendship with such agencies and remain vigilant until the state's forensic analysis is safely returned to its scientific origin.

 



[i].While Ms. Lee did not say so, it appears that the process employed and the software employed is much like PCAnywhereJ or similar programs.

[ii].Strong evidence exists that this statement is false. In a telephone conversation had between Susan Nimnum of our office and David Radomski of National Patent Analytical Systems on June 12, 2002, Mr. Radomski was asked whether machines are calibrated prior to shipment to New York. He responded that they do some internal quality assurance testing which is of their own design and that the customer would do their own calibration. He was again asked, When a new machine is shipped out to New York, you don't calibrate them for the customer? He again responded, No, they would use their own procedures.

[iii].See ABA Stds. The Prosecution Function Standard 3-5.6



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