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Intoxilyzer 4011AS


A Monroe County Sheriff’s Deputy observed the criminal defendant’s vehicle changing lanes without signaling while traveling northbound on Route 15 in the Town of Brighton. The deputy pulled over and approached the defendant’s vehicle. From outside the defendant’s car the deputy noticed the defendant’s hands were trembling as he looked through his wallet for his driver’s license. The deputy smelled the strong odor of an alcoholic beverage on the defendant’s breath. The deputy observed the criminal defendant swaying slightly as he exited his vehicle. He also noticed the defendant’s face was flushed and he once again observed the odor of an alcoholic beverage. The deputy testified that the defendant was polite and courteous.

The Deputy then radioed for the Sheriff Department’s mobile DWI processing van which arrived within 20 minutes. The van operator observed that although the criminal defendant’s face was pale, his cheeks were flushed and he swayed when he walked. The van operator then tested the defendant’s breath on a CMI Intoxilyzer 4011AS instrument. At this point in the trial defense counsel objected to the introduction into evidence of the test result on the grounds that the People must present expert testimony to establish the reliability of the Intoxilyzer 4011AS.

The court allowed the prosecution to offer proof of the test results but reserved on the objection made by defense counsel. The People presented a very thorough memorandum citing several reasons why expert testimony is not necessary at the time of trial on the reliability of the Intoxilyzer 4011AS. The first ten pages of the memorandum set forth the background and development of the Intoxilyzer 4011AS. In addition, Federal and New York State legislative and administrative recognitions of the reliability of the Intoxilyzer 4011AS were set forth. However, the Court must only consider New York State statutory and administrative authority.

The prosecution maintains that the admission of test results on an Intoxilyzer certified by the Department of Health without the necessity of expert testimony is mandated by the Vehicle and Traffic Law.

The court shall admit evidence of the amount of alcohol or drugs in the criminal defendant’s blood as shown by a test administered. However, the court refers only to the qualifications and competence of individuals to conduct and supervise chemical analysis of a person’s blood, urine, breath or saliva and does not acknowledge specifically any type of equipment, let alone an Intoxilyzer 4011AS.

If the Legislature had desired that Courts admit evidence ascertained from specific breath testing equipment, the statutes would read accordingly. Since criminal statutes are to be construed strictly, the Court cannot surmise that the results of an Intoxilyzer 4011AS are to be allowed into evidence on anything other than a common law evidentiary basis.

The defense points out that the Intoxilyzer 4011AS does not have a history equivalent to the Breathalyzer test.

In a related case, the District Court of Nassau County took judicial notice of the Court’s own records which indicated that the equipment before the Court was consistently used by the Nassau County Police Department. This is not the present situation. In the Brighton Town Court, only the Monroe County Sheriff’s Department uses the Intoxilyzer 4011AS. The Brighton Police Department and the New York State Police use the Breathalyzer test. Accordingly, there is no wide acceptance or lengthy history of use of the Intoxilyzer 4011AS by local law enforcement agencies.

Secondly, in the above-mentioned case the prosecution had consistently provided a qualified chemist to testify to the theory and workings of the breath testing equipment. In the instant case, the prosecution never presented to the Court testimony as to the theory or workings of the Intoxilyzer 4011AS.

Further, in the above-mentioned case, the Criminal Court went on to say that in light of the heavy volume of such cases, proof by expert testimony should not be required to establish the general reliability of the machine. However, the Court stated that the testing of the machine and its various components was not adequate to prove the reasonable accuracy beyond a reasonable doubt. Accordingly, with no other evidence of intoxication or impairment, there would have been insufficient proof to sustain a conviction.

The Court also noted that the police agency took two samples of the defendant’s breath, each resulting in the same reading and this duplication of sampling was some evidence supporting the accuracy of the reading. Coincidentally, this mandated that when a breath test is taken, a second sample should also be taken and preserved for future testing by the defendant. However, only one sample was taken in the instant case.

The Criminal Court noted the widespread and successful use of radar in the Armed Services as well as on ships and aircraft and at airports. In addition, the Court emphasized that the question of the reliability of radar speed meters has been passed upon by several lower Courts in New York State. Neither of these factors is currently present.

Of the three local superior court judges who have reviewed the evidence in reference to reliability and admissibility of the Intoxilyzer 4011AS test result, only one has held that it is no longer necessary to produce an expert in an Intoxilyzer 4011AS case. In another related case, an acting County Court Judge found that the Intoxilyzer was reliable. However, he had as a basis the testimony of a qualified expert. Conversely, in another case, neither judge received into evidence the Intoxilyzer 4011AS test results.

Since the readings of .14 are the results of a statutory test, they are admissible and the Vehicle and Traffic Law expressly so provides. Of course, there must be adequate proof that the test was so conducted and the apparatus of such a nature and such operating condition that it produced a reasonably accurate result. Unfortunately, having had no expert testimony presented, the Court in the case at bar is without any record to make its own determination as to the instrument’s reliability. Likewise, although this Criminal Court believes the Intoxilyzer 4011AS might be acceptable equipment, there are no statutory or appellate court mandates requiring its test results to be accepted into evidence. Accordingly, the objection of defense counsel to the admissibility of the test result is sustained.

Since the test result is not admissible, the observations of the deputies are the only evidence before the Court. The defendant’s driving pattern, breath, flushed face and staggered gait are some proof of alcohol ingestion. Contrariwise, the defendant’s polite and courteous demeanor and the lack of other incriminating observations by the deputies tend to exculpate the defendant. The defendant’s tremoring hands can be explained as nervousness upon being stopped by a police officer.

Although both deputies stated that they believed that the defendant was intoxicated, upon cross examination neither deputy could articulate what intoxication meant. Nor could either deputy distinguish between an individual being intoxicated and being impaired by the use of alcohol.

Accordingly, the Court finds the criminal defendant not guilty of driving while intoxicated (DWI). However, the Court finds beyond a reasonable doubt that the defendant was guilty of driving his vehicle while impaired by the use of alcohol in that his consumption of alcohol diminished to an appreciable degree his ability to operate his vehicle in a manner like that of an ordinary, prudent and cautious person in full possession of his faculties, using reasonable care under like conditions.

Concomitant with the decision the Court calls upon the Appellate Court and the Legislature of New York to urgently give direction to the trial courts in the important area of testing suspected drunken drivers.

When driving, falling out of lane does not necessarily imply that the driver is guilty of drunk driving. If you are wrongfully accused of DWI and you believe otherwise, seek the help of the Nassau County DWI Defense Lawyer or the Nassau County Drunk Driving Attorney. You can also add to your legal team the Nassau County Criminal Attorney of Stephen Bilkis and Associates.

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