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Rosario Applied to Missing Breath Ticket

February 14, 2008

We recently completed a series of lectures for Lorman Educational Services entitled Handling the DWI Case in New York. Focusing upon breath testing, one of our themes was that new equipment creates new opportunities. And so it is. Both of the new infrared devices that are being brought on-line by the Bureau of Municipal Police and the New York State Police, the DataMasterJ and the AlcoTestJ 7110 MK III c, print so-called evidence tickets. The parameters of these tickets are essentially set by the testing agency and can be quite broad indeed. For instance, a basic DataMasterJ printout will include only the result of the internal (quartz) check, the result of both purges, the result and temperature of the simulator test and the result of the motorist's chemical test. In the field, however, the scope of the ticket is much broader. As the machine is presently configured in some jurisdictions, it will ask the operator to respond to a litany of prompts concerning the motorist and his or her activities that evening. The operator will be asked, for instance, where the motorist was last drinking. Additionally, it may ask whether there are any prior offenses, the time the observation period began and the location of the arrest.

This recent addition creates some interesting issues. If I can diverge for a moment, we don't know whether you have observed this in your area, but in many parts of the State, the arresting officer will not provide the so-called Commissioner's Warnings unless and until the motorist has refused. Further, we are finding that the warnings mandated by Miranda v Arizona are not being given until after breath testing has been completed or until the motorist has finally been deemed a refusal. We think that this methodology is the product of careful consideration. Think of People v Gursey, (1968) 22 NY2d 224, 292 NYS2d 416. In short, this landmark decision says that the motorist is entitled to speak with counsel prior to making a decision as to whether to submit to a chemical test. Now, although there is no mandated Gursey warning, properly timed a Miranda warning can have just such an effect. Think of it this way. The motorist is advised of the traditional warning relating to her right to counsel. Immediately thereafter she is asked if she will submit to a chemical test to determine her blood alcohol content. What will the reasonable motorist do? Probably ask for counsel. While the arresting officer can ignore the request at the risk of losing the post-arrest statements, in all likelihood, these will be the same or similar to declarations which will be deemed pre-arrest and therefore outside the parameters of Miranda. Notwithstanding the relative lack of importance of non-compliance with the Miranda warnings, the Gursey issue looms large. In our example, the test would be inadmissible unless the motorist has had an opportunity to consult with counsel.

The foregoing has related an atmosphere where most seasoned veterans will forego the Miranda warnings until after the chemical test has been given. If a formal interview is delayed until after the test, the only risk the officer runs is any custodial responses made between the pre-arrest interview and completion of the test.

To return to the topic of computer generated evidence tickets, we review this situation here because it flies in the face of what will be reported on the ticket. Consider the prompt last place drinking. Clearly, if the motorist has not been advised of his or her Miranda warnings, that question and the response should be suppressed. At this point, the issue will be how is it accomplished? Will the jury be shown an evidence ticket which has been redacted with a black marker? Our fear is that this will serve to create undue speculation and could create a situation where an explanation, if requested, may require an affirmative comment from the court regarding invocation by the defendant of her right to remain silent. If the defendant has requested that that instruction not be given, this could result in a mistrial time bomb.

Loss of the ticket or the failure of the machine to properly print the ticket and all of the required responses creates even greater problems. The ticket may now constitute Rosario material. In People v Rosario, (1961) 9 NY2d 286, 213 NYS2d 448, the New York Court of Appeals recognized the utility of a witness's pre‑trial statements as constituting an integral part of the fact finding process. In People v Martinez, (1988) 71 NY2d 937, 528 NYS2d 813, 524 NE2d 134, the Court of Appeals summarized three areas of claimed Rosario violations: delay in the disclosure of Rosario material; failure to completely produce the material and, finally, cases where Rosario material has been lost or destroyed. In People v Ranghelle, (1986) 69 NY2d 56, 511 NYS2d 580, 503 NE2d 1011, the Court of Appeals addressed late service, non‑service, and the prosecution's duty to ascertain the existence of material falling within the Rosario net. Finding that the late service will afford the People some room in the event that "substantial prejudice" cannot be found, the Court left little margin when the error concerns the failure to locate or serve:

When, however, the prosecution fails completely in its obligation to deliver such material to defense counsel, the Courts will not attempt to determine whether any prejudice accrued to the defense. The failure constitutes per se error requiring that the conviction be reversed and a new trial ordered (see People v Perez (1985) 65 NY2d 154, later proceeding (2d Dept) 154 App Div 2d 485, app den 75 NY2d 774). Finally, the People's good faith effort to locate, identify and discover all Rosario material does not excuse their failure to produce covered material (compare People v Bigelow (1985) 66 NY2d 417; People v Simmons (1975) 36 NY2d 126.

Id. at 63 (emphasis added).

In People v Martinez, 71 NY2d 937, 528 NYS2d 813, 524 NE2d 134, the Court of Appeals reviewed the various options that become available when it is claimed that Rosario material is missing or destroyed. Notes pertaining to a pre-trial identification were unavailable for cross-examination. Defense counsel moved to preclude the witness from testifying on the ground that the written record of his statement to the investigating officers had not been served. At the close of a hearing held on the violation, the Court denied a defense but decided instead to instruct the jurors that they could draw an adverse inference against the People because of their failure to produce the officer's notes.

In holding that the instruction was sufficient, the Court of Appeals noted that in determining the proper sanction to be applied when Rosario material is missing or cannot otherwise be located, the trial court should focus primarily on the overriding need to eliminate prejudice to the defendant (Id. at 940). Where, however, the defense has provided specific notice of its interest in particular material, it has been found that Aheightened rather than lessened prosecutorial care is appropriate" (People v Cortez (1990) 149 Misc 2d 886, 564 NYS2d 963). In People v Cortez, supra, the court recognized the status of a 911 tape as Rosario material. Finding that "for Rosario‑rule purposes, recorded statements held by the police must be deemed in the prosecutor's constructive possession," the Court held dismissal to be the only appropriate remedy.

Recently, we dealt with a matter involving a missing DataMasterJ evidence ticket. In People v Gumpert, the document disappeared shortly after administration of the test. At trial, we objected to admission of the DataMasterJ results upon several grounds but primarily upon the basis that the ticket and the declarations contained thereon constituted Rosario material. The court agreed and the test was precluded. Subsequent to the trial, the court (Connell, J.) issued a written decision. Since the decision has been submitted for publication on what is clearly an issue of first impression, it is being reprinted in full herein.








-vs- Ind. No.2000-0016




APPEARANCES: The Monroe County District Attorneys Office


Assistant District Attorney

for the People


Fiandach & Fiandach


for the Defendant



Connell, J.

The following constitutes the Opinion, Decision & Order of the Court.

The defendant is charged with two counts of Opera-ting a Motor Vehicle While Under the Influence of Alcohol or Drugs as felonies, in violation of '1192(2) and ' 1192(3) of the Vehicle and Traffic Law. During the trial, the defendant made a motion to preclude the testimony of the breathalyzer operator based on the inability of the People to produce the ticket printed out by the machine at the time of the test.

The breathalyzer in question is an infrared instrument called a DataMaster. The machine is activated when the operator inserts a blank ticket into the machine. The operator is then prompted by the DataMaster to type in answers to questions relating to the defendant's name, date/time of arrest, location, period of pre-test observation, and other relevant information.

Once the defendant's breath sample is taken and analyzed by the machine, the DataMaster produces a printed ticket with the information that was inputted, as well as the test results. If any errors in the instrument or test occur, that information also appears on the ticket.

In this case, after the information was inputted by Officer Ott of the Irondequoit Police Department, the test was conducted and a ticket was produced which was then turned over to Officer Fitzsimmons, the arresting officer. The ticket was determined to be lost within moments of the defendant's release from custody in the early morning of his arrest, July 16, 1999. There was no indication that the defendant's actions led to the loss or destruction of the ticket. Neither the ticket nor any copy of the ticket was produced at trial.

The defendant has asked this Court to preclude the testimony of the breathalyzer operator and evidence of the test result on three grounds: (1) that the machine was not operating properly; (2) that the Best Evidence Rule prevents Officer Ott from testifying about the test result from his records made at the time of the test, and (3) that the ticket constituted Rosario material.


Officer Ott testified that without a ticket being inserted into the machine, the machine would not operate. Proper tests were conducted shortly before and after the defendant's test was run. The officer also indicated that he had never run a test with that machine that had resulted in an error. This Court finds his testimony credible that the DataMaster was operating properly at the time of the defendant's test.

Accordingly, since this Court finds that a ticket was produced after the test of the defendant, the motion to preclude the test results is denied on the challenge to the machine's proper operation since the failure of the police to produce the ticket goes to the weight to be given to the test results, not to the admissibility of the test results themselves.


The Best Evidence Rule requires that the district attorney seeking to introduce the contents of the missing DataMaster ticket satisfactorily explain its absence (People v Pennick, 204 AD2d 988, app den 83 NY2d 970; Trombley v Seligman, 191 NY 400). The People demonstrated through the testimony of the two officers that a diligent and exhaustive search for the ticket was unsuccessful. Therefore, the People met their burden in that regard (Carols Equities Corp. v Villnave, 57 AD2d 1044 [4th Dept. 1977], app den 42 NY2d 810). However, since no copies were made of the ticket and no documents exist that accurately and completely memorialize the ticket's content, the People may not use secondary evidence to show the contents of such a limited part of the document (Schozer v Penn Life Ins. Co., 84 NY2d 639).


Additionally fatal to the People's opposition to precluding the test results, is the clear violation of the rule established in People v Rosario, (9 NY2d 286). Some of the information ultimately printed on the ticket was inputted by Officer Ott. In addition to the name of the defendant and the date and location of the arrest, the ticket also included the time of arrest and period of observation before the test was conducted, which are crucial to the admissibility of the final test result (Vehicle and Traffic Law '1194).

The People argue that even if the ticket does constitute Rosario material, it should not be precluded because the officers could testify about its contents and the defendant had an opportunity to personally see the ticket at the time of the test.

None of those factors, however, provide a complete description of the ticket's contents for defense counsel to consider strategy and prepare cross-examination. There being no satisfactory duplicative equivalent (People v Young, 79 NY2d 365) of the ticket, and the absence of that document being clearly prejudicial to the ability of defense counsel to effectively cross-examine the People's witnesses, the only possible sanction is preclusion.

Accordingly, the application of the defendant to preclude the testimony of Officer Ott and the results of the breathalyzer is in all respects granted.

Signed this day of June, 2000 at Rochester, New York.


County Court Judge

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