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Defendant Challenges the Accuracy of Breathalyzer Instrument


A New York Criminal Lawyer said on 11 March 2007 at 4:58 A.M., a police officer who was trained to estimate the speed of a moving vehicle observed defendant traveling at about 90 miles per hour on the Long Island Expressway. The officer confirmed that estimate by a laser device and by his speedometer during the subsequent pursuit. The officer stopped defendant and noted that defendant exhibited several indicia of intoxication. Defendant admitted having had “one drink.” The officer administered a series of field sobriety tests, all of which defendant failed. The officer arrested defendant at 5:23 A.M. and transported defendant to the Nassau County Police Department’s Central Testing Unit, where defendant again failed a series of sobriety tests and consented to a chemical test of the alcohol content of his blood. The test, conducted at 7:24 A.M. by an Intoxilyzer 5000 EN breath test instrument, produced a reading of.11 per centum by weight.

Defendant was convicted of driving while intoxicated (DWI) and speeding under the Vehicle and Traffic Law. Defendant appeals the decision with the herein court.

Defendant sought to introduce expert testimony as to the range of individual variation within the general population from the 2, 100:1 “conversion” or “partition” ratio used in the Intoxilyzer 5000 EN to derive the concentration of alcohol in a person’s blood from the quantity of alcohol vapor detected in a breath sample. A New York DWI Lawyer said the defendant did not challenge the instrument’s reliability, but sought to lay the foundation for a jury argument that defendant’s individual ratio might differ so significantly from the mean as to diminish the evidentiary weight to be accorded the test results. The District Court precluded the evidence, apparently on relevancy grounds.
Is the defendant correct? Is the defendant’s individual ratio so different that the evidentiary weight accorded to the results must be diminished?

The scientific accuracy of “breath testing instruments” approved by the New York State Department of Health (New York State Department of Health Regulations) is “no longer open to question”, and the Intoxilyzer 5000 EN is one of those approved instruments (New York State Department of Health Regulations). A consequence of the general acceptance in the scientific community of the reliability of the results of blood alcohol testing by such instruments is that it is no longer necessary to establish, through foundational evidence, the reliability of the test results by means of expert testimony. The presumption of reliability extends to the scientific premises underlying the operation of breath test instruments, including the validity of the partition or conversion ratio.

Although the fact, if not the magnitude, of conversion ratio variability is well established, defendant challenges the use of Breath Tests for Drunk Drivers based upon claim that partition or conversion ratio between measured breath alcohol and actual blood alcohol is inaccurate. A Nassau County DWI Lawyer said as a general rule, evidence of such variability may not be introduced to challenge the reliability of instruments that determine blood alcohol levels from the analysis of breath samples.

Absent proof by defendant that his personal conversion ratio differs so significantly from the mean as to materially undermine the weight to be given the test result, it cannot be said that the test so erroneously recorded his blood alcohol content as to render his conviction wrongful. Evidence, although technically relevant, will be excluded if it is too slight, remote, or conjectural to have a legitimate influence in determining the fact at issue. Thus, the District Court did not abuse its discretion in rejecting defendant’s offer of proof which, while involving matters not theoretically irrelevant, was not shown to have probative value above the “slight, remote, or conjectural” and amounted to little more than an invitation to speculate.

Police department personnel responsible for calibrating and maintaining breath test machines are not independent of law enforcement, and the business records rule may not be employed to shield from scrutiny records calculated for use essentially in the courts, not in the business. Further, while in New York, law enforcement agencies constitute businesses for purposes of court use, business records lose their exemption from the hearsay bar if the regularly conducted business activity is the production of evidence for use at trial. The test is, first, whether the documents qualify as business records and then whether they are also non-testimonial; whatever the state law definition of business records and the specifics of the foundation rules necessary to admit such records may be. While the purpose of accurate breath-alcohol measuring machines is to produce evidence that may be used at trial, the calibration and maintenance documents in relation to the machines are not testimonial. Calibration and maintenance records are created in recognition of their necessity in the event of litigation and constitute a part of the foundational predicate for the admission of BAC test evidence. However, such records do not result from structured police questioning, they are not created in response to any effort at gathering incriminating evidence against a particular accused, they reflect objective facts without discretionary aspect, they do not involve opinions or conclusions relevant to a particular investigation, and they do not constitute a direct accusation of an essential element of any offense. Additionally, such records satisfy the criteria to the extent that they were not “prepared in a manner resembling ex parte examination. In light of the purpose of creating the documents, there is no reason to suspect a preparer’s motive to accomplish anything other than to fulfill the official mandate that the machines be maintained in working order.

Defendant’s argument that the blood alcohol test result was inadmissible because the presence of numerous persons moving between the observing police officer, seated 5 to 10 feet from defendant, prevented the officer from maintaining a “continuous observation” of defendant for the 15-minute period prior to the test, is also without merit.

A Queens County DWI Lawyer said the proof of the requisite “continuous observation” is not a predicate condition to admit breathalyzer test results; rather, it goes only to the weight to be afforded the test result, not its admissibility. Moreover, the observation requirement is not strictly construed. The statute, the regulations or the exercise of reason don’t call for a constant vigil, and defendant does not claim that during the 15-minute period prior to the test, he placed anything in his mouth or that any other event occurred that implicated the test’s accuracy.

On defendant’s remaining contentions, the court finds them unpreserved or without merit.
The court, in fulfilling the responsibility to conduct an independent review of the weight of the evidence, must accord great deference to the jury’s opportunity to view the witnesses, hear the testimony and observe demeanor. Weight of the evidence review requires a court first to determine whether an acquittal would not have been unreasonable. If so, the court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions. Based on the weight of the credible evidence, the court then decides whether the trier of fact was justified in finding the defendant guilty beyond a reasonable doubt.

Accordingly, upon our review of the record, the herein court is satisfied that the verdict was not against the weight of the evidence.

Driving while intoxicated poses various threats to road users. Thus, to protect the road users, the government has implemented traffic regulations that must be strictly followed like any other law. If you were involved in a situation related to cases of driving while intoxicated, contact Stephen Bilkis & Associates. Talk to an NY DWI Attorney from our firm for a free consultation. In addition, you may also consult with an NY Criminal Attorney from our firm to discuss the pursuit of criminal prosecution in detail.

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