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Defendant Contests Calibration of Breathlyzer in DWI Case


The accused man is charged of driving while ability is impaired by alcohol. During the course of his DWI consolidated pre-trial hearings and non-jury trial, the accused team objected to the complainant’s admission of the certified calibration records and simulator solution certificates. An NY Criminal Lawyer said that the challenged documents relate to the breath test instrument used to test the accused man’s blood alcohol level at the time of his arrest. The accused counsel’s challenge was made on the grounds that admission of such business records without the testimony of the analyst who created them violates the law. The Court reserved the decision on the application while completion of the case is pending, at which time the Court granted both parties the opportunity to submit summary of law in support of their respective positions. The Court has considered the several submissions by the counsel in concluding that the certified calibration records are admissible and do not violate the law.

A NewYork Criminal Lawyer said that based on records, the law held that since the Constitution guarantees a criminal accused the right to be confronted with the witnesses against him, the practical application of the law prohibits the introduction of out-of-court statements which are testimonial in nature, unless the accused had an opportunity to cross-examine the person who made the statements.

Records similar to the challenged documents have been admitted routinely for years in State DUI cases if properly authenticated under the State business records in exception to the hearsay rule. Most courts examining the issue in light of the law still held the records to be non-testimonial and therefore admissible without live testimony in accordance to the proper authentication. Addressing the business records hearsay exception, the Court of Appeals also cautioned against the categorical elimination of business records as a basic misreading of the law. A thorough analysis declined to adopt a bright line rule admitting business records without testimony, as facts and context are essential and the question of validity of the testimony requires consideration of multiple factors, not all of equal importance in every case.

The Supreme Court held that admission of analysis certificates of certain types of scientific tests violates the law if admitted in place of a live testimony with no opportunity for cross-examination by an accused. Writing for the majority, it was reasoned that when a report is prepared with a reasonable expectation that it will later be used at trial, and lay down facts that may become helpful to the complainant, which are sought to be proved at the trial, it must be considered testimonial and therefore cannot be admitted as a business record. The Court explicitly exempted the calibration reports and simulator solution samples from the reach of the ruling. It also acknowledged a legitimate concern of the complainants who are faced with potentially higher costs and overburdened staff but insisted that the rule will not be as burdensome as many fear.

The calibration and simulator solution records were prepared not in anticipation of the complainant of the particular accused but as relating to the regular maintenance of the particular Alcotest machine and chemical samples. Specific limitation recognizes that it would be a reduction to the illogical to require live testimony from every witness who has laid hands on a case. Underlying records of breath test instruments are non-substantial from the direct fact of the accused man’s intoxication and guilt of the charge. His blood alcohol level at the time of his arrest was not proven or even shown.

The arresting officer is a certified State Police breath test operator who actually conducted the blood alcohol test used at trial to prove the ultimate issue. He testified thoroughly as to the procedures and safeguards he conducted prior to, during and after the test of the accused man’s breath. He collected, analyzed and testified to the actual evidence contained in the Alcotest report of the accused man’s blood alcohol level. The proper operation and functioning of the machine was part of his testimony based on his training and experience. The ministerial reports admitted as business records were merely background to, and confirmed by his testimony. He laid the proper foundation to admit the documents as business records. The rights guaranteed to the accused have not been violated.

The Court holds that calibration and simulator solution certificates of breath test instruments are non-testimonial and specifically exempted and their admission based on the appropriate business record foundation did not violate the law. The accused man’s motion for a Trial Order of Dismissal is denied.

When you decide to be behind the wheel knowing that you are not perfectly sober is such an irresponsible act because doing so would certainly harm other people and get you into a criminal case. If you have been charged with sex crimes, a theft charge or DWI, call Stephen Bilkis and Associates.

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