Judge Andrew Engel
Rath was charged with driving while intoxicated per se and driving while intoxicated and found guilty by a jury. He now moved to set aside his convictions arguing that the admission into evidence of certain electronic records regarding the calibration and maintenance of the breath testing device used by police was erroneous. Rath argued that as “reproductions” of electronic records, the documents should not have been admitted as prosecutors failed to show compliance with CPLR 4539. Prosecutors claimed the documents were electronic records within the meaning of State Technology Law §302 and never existed in documentary form. The court stated it was clear the documents were electronic records that were first created by electronic means from the outset, and were not presented as reproductions of business records that were originally in documentary form. As they were neither copies nor reproductions made in the regular course of business, this took the documents out of the ambit of §4539. The court denied Rath’s motion, ruling the documents were not subject to the best evidence rule, noting as a proper business record foundation was laid for the electronic records, the documents were properly admitted under the business records exception to the hearsay rule.
