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The Court orally denied the defendant’s motion

The defendant was charged with Driving While Intoxicated Per Se, Vehicle and Traffic Law, Driving While Intoxicated, Turning Movements and Required Signals, and Consumption or Possession of Alcoholic Beverages in Certain Motor Vehicles. After a trial by jury, the defendant was convicted of Driving While Intoxicated Per Se, Driving While Intoxicated and Consumption or Possession of Alcoholic Beverages in Certain Motor Vehicles.

The DWAI https://dwi.1800nynylaw.com/new-york-dwai-lawyer.htmldefendant moved prior to trial to preclude the People from eliciting the result of the defendant’s breathalyzer test for blood alcohol content as a three decimal point reading. The defendant contended that the New York Department of Health Rules and Regulations regarding the chemical analyses of blood, urine, breath or saliva for alcoholic content require that the result of a breathalyzer test be reported only to the second decimal point. The People did not oppose the defendant’s application and agreed to introduce evidence of the criminal defendant’s breathalyzer test result as a two decimal point reading. Thereafter, the video recording of the defendant’s breathalyzer test was admitted into evidence and published to the jury. The recording, however, displayed the defendant’s breathalyzer test result as a three decimal point reading. The defendant objected and moved for a mistrial, claiming that the error was so prejudicial that it deprived him of a fair trial. The Court orally denied the defendant’s motion, finding that the report of the defendant’s breath test to the third decimal point was a violation of a Department of Health rule which affected only the weight of the evidence and not its admissibility.

Unlike the 15 minute observation requirement, the rule that a breathalyzer test result be reported to the second decimal point does not implicate the reliability of the test. The failure to observe the defendant to ensure, for example, that he has not placed anything in his mouth before the test obviously may impact the accuracy of the result. In contrast, the report of a breathalyzer test result beyond the second decimal point is a ministerial error which is unrelated to the procedure or accuracy of the test. As such, the fact that a breath test result is reported to the third rather than the second decimal point is irrelevant to its admissibility. If anything, the failure to comply with the Department of Health reporting rule impugns the credibility of the witness who recorded the breath test result, not the test result itself. Consequently, the admission into evidence of the video recording displaying the defendant’s blood alcohol content as a three decimal point reading is not error which the fact finder is bound to disregard.

Accordingly, the report of the defendant’s blood alcohol content to the third decimal point on the video recording is not so prejudicial to the defendant as to deprive him of a fair trial. The defendant’s motion for a mistrial therefore is denied.

In another DWI case, the defendant was charged with the offenses of driving an unregistered vehicle and driving while intoxicated, both offenses arising out of the same incident. On the first charge, he was convicted in the Criminal Court, Queens County, and sentenced to pay a fine of $25 or, in the alternative, to serve five days. The fine was not paid and the defendant was committed to serve the five days. On the latter charge the defendant was indicted for DWI driving while intoxicated as a felony. Upon his plea of guilty to the lesser charge of an attempt, he was sentenced to a term of one year.

Since these offenses were committed as parts of a single incident or transaction, the aggregate of definite terms of the sentence imposed therefor may not exceed one year. The defendant has asserted on this appeal that he was indigent at the time the $25 fine was imposed and therefore the alternative sentence of five days must be considered as a definite term of imprisonment contributing to an aggregate term in excess of one year. If his assertion of indigence is true, he would be entitled to have his sentence modified to comply with the Penal Law.

The judgment should therefore be without prejudice to an application by the defendant to the County Supreme Court to establish his inability to pay the $25 five and to seek modification of the one-year sentence. The other points raised by the defendant are without merit.

Once harm has been done or a life has been taken due to accident caused by drunk driving, there is no way to undo it. If you want to file a DWI case, visit Stephen Bilkis and Associates and seek for the Queens County DWI Defense Lawyer or the Queens County Drunk Driving Attorney.

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