Fiandach & Fiandach (Rochester NY)
toll free: 585.244.8910

ny dwi . com

Fiandach & Fiandach (Rochester NY)


Fiandach & Fiandach - New York's First and Western New York's Only DWI Defense Specialist.
Let us dare to read, speak, and write ~ John Adams

Are the DataMaster Certifications Sufficient to Warrant Suspension Pending Prosecution

February 13, 2008

Before discussing what may be a crucial and often overlooked issue, let's briefly review the basics of suspension pending prosecution. We have previously discussed the Pringle hearing, most notably in 4 NYDWI Bulletin 11. Perhaps the most amazing thing about this particular area is that despite the obvious frequency with which suspension pending prosecution obviously comes into play (see, Pringle v Wolfe, 88 NY2d 426, 646 NYS2d 82, 668 NE2d 1376 [1996]), relatively little seems to be written on the implementation of the suspensionary provision. In fact, aside from an infrequent reference to issuance of the hardship license, the only case to extensively discuss Pringle was People v Giacopelli, 171 Misc2d 844, 655 NYS2d 835 (1997), (4 NYDWI 11), even though that case dealt not with per se suspension pending prosecution but the so-called 2 in 5 instead.

Most often followed is the procedure employed in People v Green, 1998 WL 185128. The defendant was charged with Driving While Intoxicated in violation of Vehicle and Traffic Law ''1192 subdivisions 2 and 3, as well as with a traffic infraction.

On the date of the defendant's first appearance, counsel for the defendant argued for a delay in the mandatory suspension pending prosecution. The delay was requested by defense counsel so that arguments could be made regarding whether and to what extent Pringle requires that this court hold a suspension hearing. Thereafter, briefs were filed on the oral motion, and an additional adjournment was granted so as to allow the court to decide the issue.

The Green court commenced by recognizing the obvious, that in Pringle v Wolfe, 88 NY2d 426, 646 NYS2d 82, 668 NE2d 1376 (1996), cert denied, CUSC , 117 S Ct 513, the Court of Appeals upheld the constitutionality of the statute and addressed the procedures that arraigning courts must follow before a defendant's driving privilege may be suspended. Specifically, the court found that in Pringle, the Court of Appeals determined that the court must hold a suspension hearing before the conclusion of the proceedings required for arraignment and before the driver's license may be suspended.

Of greater interest is the substance of the procedure that the Green court found should be followed. In Pringle, the court determined that the following procedure was required:

1. First, the court must determine whether the accusatory instrument is sufficient on its face;


2. Second, the court must determine whether reasonable cause exists to believe that the defendant operated a motor vehicle while having a blood alcohol level of .10 of one percent or more by weight of alcohol in such driver's blood as shown by chemical analysis of blood, breath, urine or saliva. Furthermore, these chemical analysis results must be presented in certified, documented form;


3. Once the court is satisfied that the above two elements have been met, the court shall deem that a "prima facie" finding has been established. The defendant must then be given an opportunity to make a statement regarding (i.e., limited to) the above two issues, and to present evidence to rebut the court's "prima facie" findings. The court may grant a short adjournment if necessary to allow the defendant to marshal evidence for this purpose.


Giacapelli, if you will recall, undertook an extensive hearing as to the factual circumstances underlying the motorist's arrest as well as the events surrounding the administration of the chemical test. In Giacopelli, the court allowed some 155 pages of testimony to be taken over the course of a two-day hearing to determine the issue of suspension pending prosecution. More significant, however, were the court's statements regarding the burden of proof at such a hearing:

At the hearing, the court was satisfied that the accusatory instrument conformed to the requirements of Section 100.40 of the CPL, and held that the People had the burden of going forward to demonstrate the existence of 'Reasonable Cause' to believe that the defendant operated the motor vehicle in violation of Section 1192(2) or (3).

Id. at 851, 655 NYS2d 835 [Emphasis added].


In Green, the court was not willing to go quite as far. Acknowledging that Vehicle and Traffic Law '1193(2)(e)(7) and Pringle create the right to a hearing, the court found that the scope of that hearing would be limited strictly to:

the two issues of court inquiry regarding its prima facie finding as set forth in parts one and two of the Pringle procedure. No testimony or evidence should be allowed as to the underlying facts leading to the arrest. In addition, it is this Court's opinion that once a prima facie finding has been made by the court, Pringle thereafter shifts the burden of proof to the defendant in regard to the defendant's opportunity to rebut the prima facie finding. Thus, the burden of proof is on the defendant in regard to step three of the Pringle procedure.


To the degree that Giacopelli held or suggested that the People have the burden of proof at such a suspension hearing, despite there having first been a prima facie finding, the Green court disagreed. Furthermore, the Green court opined that while no specific time limit should be imposed as to the length of such a hearing, this Court cannot conceive of any reason why a suspension hearing, limited in scope as described above, should not in the vast majority of cases be concluded in a dramatically more expeditious manner than was the case in Giacopelli.

As a final matter, the Green court turned to the issue of adjournments to allow a defendant time to marshal evidence prior to a suspension hearing. Observing that Pringle left this issue to the sound discretion of the court, the Green court opined that "reasonable" requests and "short" adjournments, as a good rule of thumb may be for courts to limit such adjournments to three business days, such that a suspension hearing would be conducted at the same time as a hardship hearing.

While we did not agree with the procedure outlined by Green, we must admit that it has surely become the status quo across the state. Even so, not all issues should be summarily dismissed. Pringle v Wolfe (1996) 88 NY2d 426, 646 NYS2d 82, cert denied, CUSC , 117 S Ct 513, particularly the unmistakable reference to CPLR 45188 mandates that the document purporting to set forth the motorist's blood alcohol content meet the so-called business entry exception to the hearsay rule. While this argument early on led to rather vociferous opposition, it has quietly become the law. Even the State Legislature seems to silently agree with the need for certification. In the Omnibus DWI Act of 1999, it was provided that:

The original record of the chemical test results included in any accusatory instrument need not be certified pursuant to subdivision (c) of rule forty-five hundred eighteen of the civil practice law and rules to be considered legally sufficient and admissible in evidence.


Virtually every police agency in the State of New York now has adopted computerized printout forms for both the DataMaster and the AlcoTest that contain in sum and substance, the following language:

I, , am employed by the , a governmental agency, and, having been delegated by my employer to do so, certify that the above record of blood alcohol content analysis was made in the regular and ordinary course of business of this agency; that it is the regular and ordinary course of business of this agency to perform analyses of blood alcohol content and to make records of such analyses at the time they are performed; that the entries appearing on the above record were made at or soon after the time of the acts, transactions, occurrences or events stated thereon; that this record, if a copy, is a complete and exact duplicate of the original thereof; and that it is part of my employment responsibilities to maintain custody or control of this record.

This language and the concomitant requirement for certification raises some interesting questions. For instance, the National Patent Analytical System DataMaster printout, which is commonly provided, appears to bear what was purported to be a CPLR 45188 Business Entry Exception Certificate.

The significance of the Business Entry Exception lies in the probability that the assertions contained in the documents are true. Admission under the auspices of CPLR '4518 initially requires that the documentation sought to be admitted falls within the general mandate of the statute. This requires proof of each of the following:

! [T]hat the record be made in the regular course of business‑‑essentially, that it reflect a routine, regularly conducted business activity, and that it be needed and relied on in the performance of functions of the business; . . .

! [T]hat it be the regular course of such business to make the record (a double requirement of regularity)‑‑essentially, that the record be made pursuant to established procedures for the routine, habitual, systematic making of such a record; and . . .

! [T]hat the record be made at or about the time of the event being recorded‑‑essentially, that recollection be fairly accurate and the habit or routine of making the entries assured.

People v Kennedy (1986) 68 NY2d 569, 579-580.

By its terms, CPLR '4518 conditions admissibility to documents prepared in the ordinary course of business since such a guarantee has historically been viewed as an indication of truthfulness. This has raised questions as to reports prepared by investigating agencies when such reports are offered. In Palmer v Hoffman 318 US 109, the Supreme Court held that an accident report prepared by the railway engineer involved in the accident was not admissible. It reasoned that an accident report is not a part of the systematic conduct of running the business of a railroad. The situation involved when a DataMaster ticket is concerned, it may be analogized to a police accident report. It is specifically made for use in the defendant's case. While the court may point to the DataMaster certification that is routinely offered upon a trial for an alcohol related operating offense, the situation is far different in that such a certificate is developed as a result of a state program which routinely certifies breath testing equipment. Such tests are not done for a particular defendant, and in fact, any individual certificate will be utilized in numerous cases.

Further, the DataMaster certification purportedly represents that the breath test operator is the custodian of the original documents. This, of course, is preposterous. Initially, the original document is filed with the court. Secondly, a mere patrolman is certainly not the individual within the framework of the police department who is entrusted with the custody and control of original documents. These documents must be placed on file and records clerk or a similar person would be in charge of them to qualify under the Business Entry Exception. Certain police agencies use a certification signed by the records clerk. Such would clearly eliminate this particular objection.

Opponents to the foregoing will argue that since the original record is filed with the court, that the Business Entry Exception has no relevance. This is incorrect. A copy invokes the Best Evidence Rule. The business entry exception to the hearsay rule will permit a document which is unquestionably not subject to cross-examination to be admitted for the proof of the facts contained therein regardless of its clearly hearsay character. Whereas the Best Evidence Rule runs to the reliability of a copy vis‑a‑vis the original, the significance of the Business Entry Exception and its evidentiary companions, the "public officer" and common law exceptions, lies in the probability that the assertions contained in the documents are true.

While many now ignore Vehicle and Traffic Law ' 1193(2)(e)(7) and move quickly to scheduling further proceedings in the action, let's not forget that despite the Court of Appeal's rather horrid rejection of the serious constitutional arguments raised in Pringle, the constitutionality of the procedure nonetheless depends upon basic compliance with the minimal requirements set forth in that decision. Further, counsel should not loose sight of the fact that the immediate 30 day suspension that will ensue in the event that the motorist is suspended pending prosecution will undoubtedly result in tremendous hardship not only for the motorist that must drive as a condition of his or her employment, but for the single parent home that must nonetheless deal with issues of child care activities such as soccer and the like. When confronted with such a client, it may behoove counsel to raise the foregoing issues.

« Go Back

We Get Results!

Don't take our word for it, check our DWI defense results, testimonials & client reviews

100 Allens Creek Road • Building 100, 1st Floor
Rochester, NY 14618
Toll-free Outside of Rochester: 800-592-6006

Visit Ed Fiandach's YouTube Channel
Ed Fiandach's YouTube Channel

Edward L. FiandachClients' ChoiceAward 2018

Avvo - Rate your Lawyer. Get Free Legal Advice.

10 Best Award DUI
Board Certified Specialist
National College for DUI Defense
Best Lawyers
Super Lawyers
BBB Reliability Program

NYDWI Bulletin

Fiandach Speaks


“The clients of EDWARD FIANDACH of Brighton, one of the best known DWI defense lawyers in New York, were convicted of the top count only 13 percent of the time.”

- Reprinted from the
Rochester Democrat & Chronicle

Fiandach & Fiandach | 100 Allens Creek Road | Building 100, 1st Floor | Rochester, NY 14618
585.244.8910 | Toll-free Outside of Rochester: 800-592-6006 |
Copyright 1998-2019 Fiandach & Faindach. All rights reserved. | Attorney Advertising