Relates to the admissibility of certain business records kept by the DMV

Summary of provisions

Section 1 of the bill would amend Civil Practice Law and Rules ("CPLR") Rule 4518 by adding a new subdivision (h) to provide for the admissibility of certified DMV records, abstracts or summaries of records on file with the DMV without additional foundation evidence.

Section 2 of the bill would provide that the bill take effect immediately.

Existing law

No such authorization currently exists in law for such records.

Legislative history

A similar bill was introduced in 2004 (S.6590), 2005 (S.4121/A.8718 which passed the Senate).

Statement in support

DMV employees are often called upon, by subpoena or otherwise, to testify in both civil and criminal proceedings regarding the production, mailing and accuracy of a variety of DMV records, from suspension and revocation orders to certified abstracts of operating records. Given the secure processes used to access DMV's electronic databases to generate the paper records sought to be introduced, such testimony is largely superfluous. At a time when all State agencies are compelled to find ways to do more with less, making employees available to provide testimony (or, in many cases, to wait at a courthouse only to find that a case has been adjourned or their testimony not needed) is a hindrance to DMV's efforts to improve efficiency in its day-to-day operations.

While there will obviously still be cases requiring the testimony of a DMV witness, such testimony should not be necessary for the routine

authentication and explanation of DMV records. Most DMV records involved in civil and criminal proceedings are essentially paper reproductions of electronic records. Properly certified, they should not require any additional foundation or explanation

In particular with respect to the mailing of notices and orders of suspension or revocation, in 2006 DMV began using the United States Postal Service's (USPS) "Confirm" computerized service to provide proof that DMV mailed a particular order to the individual named in the order. To use the Confirm service, DMV affixes a unique Postal ID number and barcode on each notice of suspension or revocation. Affixing the number and barcode on the notice indicates that the notice was mailed using this service. USPS scans the letter at the postal facility serving the addressee to confirm that the notice was received at its destination and then transmits that information to DMV where it is stored electronically. Through the Confirm service, DMV can electronically verify the exact date and time that the notice was scanned at a particular USPS facility. All such information is recited in the proof of mailing record prepared by DMV to establish that a defendant knew or had reason to know that his or her license or privilege to operate a motor vehicle has been suspended or revoked.

However, even using this service, two new cases have raised questions about the usefulness of DMV's proof of mailing record. In People v. Brown, 31 Misc. 3d 794 (Rochester City Ct. 2011), the court refused to admit the proof of mailing record as a business record because the court deemed the explanation of the mailing procedure contained therein to be beyond the scope of a business record. In People v. Graham, in an unpublished decision dated May 12, 2011, the Suffolk County District Court, citing Brown, held that DMV's affidavit does not meet the VTL § 214 requirement of presumptive notice that the defendant knew or should have known of the suspension. The proposed amendment of CPLR Rule 4518 will overcome the statutory infirmities cited by these rulings and facilitate the use of an efficient, common-sense approach to proving the receipt of the millions of notices and orders that DMV mails annually.

This proposal is modeled, in part, after a similar provision with respect to records or reports of support payments or disbursements maintained by or on behalf of the Office of Temporary and Disability Assistance set forth in CPLR Rule 4518(f).

Budget implications

There should be significant reductions in time spent by central office staff in receiving and tracking subpoenas and coordinating court appearances and in time spent in court by field staff responding to such subpoenas.

Effective date

This act shall take effect immediately.