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ADMISSIBILITY OF DOCUMENT ORIGINALLY CREATED IN ELECTRONIC FORM, HERE A RECORD OF TESTING OF THE SIMULATOR SOLUTION USED IN AN ALCOHOL BREATH TEST, IS DETERMINED UNDER CPLR 4518, NOT CPLR 4539.

CRIMINAL LAW, EVIDENCE, CIVIL PROCEDURE.

The Court of Appeals determined evidence which was originally generated in electronic form was admissible under CPLR 4518 (a) and CPLR 4539 (b) applies only to documents originally in hard copy and subsequently scanned into digital form. The document in question was a record of testing of the simulator solution used during an alcohol breath test:

County Court correctly held that the applicable statute is CPLR 4518 (a), which was amended in 2002 (see L 2002, ch 136, § 1) to provide that an “electronic record . . . shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record” (CPLR 4518 [a]). The statute further provides that 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,” but “[a]ll other circumstances of the making of the memorandum or record. . . may be proved to affect its weight,” and “shall not affect its admissibility” (id. [emphasis added]).

The 2002 amendment to CPLR 4518 (a) was adopted by the legislature upon the recommendation of the Chief Administrative Judge’s Advisory Committee on Civil Practice specifically because the Committee and the legislature concluded that CPLR 4539 (b) had no application to documents originally created in electronic form. People v Kangas, 2016 NY Slip Op 06857, CtApp 10-20-16

 

CRIMINAL LAW (DWI, BREATH TEST, ADMISSIBILITYY OF DOCUMENT ORIGINALLY CREATED IN ELECTRONIC FORM, HERE A RECORD OF TESTING OF THE SIMULATOR SOLUTION USED IN AN ALCOHOL BREATH TEST, IS DETERMINED UNDER CPLR 4518, NOT CPLR 4539)/EVIDENCE (CRIMINAL LAW, DWI, BREATH TEST, ADMISSIBILITYY OF DOCUMENT ORIGINALLY CREATED IN ELECTRONIC FORM, HERE A RECORD OF TESTING OF THE SIMULATOR SOLUTION USED IN AN ALCOHOL BREATH TEST, IS DETERMINED UNDER CPLR 4518, NOT CPLR 4539)DWI (BREATH TEST,  ADMISSIBILITYY OF DOCUMENT ORIGINALLY CREATED IN ELECTRONIC FORM, HERE A RECORD OF TESTING OF THE SIMULATOR SOLUTION USED IN AN ALCOHOL BREATH TEST, IS DETERMINED UNDER CPLR 4518, NOT CPLR 4539)/BREATH TEST (DWI, ADMISSIBILITYY OF DOCUMENT ORIGINALLY CREATED IN ELECTRONIC FORM, HERE A RECORD OF TESTING OF THE SIMULATOR SOLUTION USED IN AN ALCOHOL BREATH TEST, IS DETERMINED UNDER CPLR 4518, NOT CPLR 4539)/CIVIL PROCEDURE (CRIMINAL LAW, DWI, BREATH TEST, ADMISSIBILITYY OF DOCUMENT ORIGINALLY CREATED IN ELECTRONIC FORM, HERE A RECORD OF TESTING OF THE SIMULATOR SOLUTION USED IN AN ALCOHOL BREATH TEST, IS DETERMINED UNDER CPLR 4518, NOT CPLR 4539)

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