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State of Massachusetts


In this DWAI case, defendant was convicted of driving while intoxicated per se and speeding. At the trial, a Nassau County police officer testified that he was trained to estimate the speed of a moving vehicle and that, in March 2007 at 4:58 A.M., he 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.

A Nassau County DWI lawyer said that 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 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.

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.

The scientific accuracy of “breath testing instruments” approved by the New York State Department of Health is “no longer open to question”, and the Intoxilyzer 5000 EN is one of those approved instruments. 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, 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. In the District Court, defense counsel, conceding that “[n]obody knows what defendant’s ratio was,” argued, in effect, that the mere theoretical possibility that defendant’s personal conversion ratio so differed from the ratio employed by the Intoxilyzer 5000 EN as to meaningfully diminish the weight to be accorded the test results. Therefore, counsel argued, evidence of conversion ratio variability within the population should be admissible without proof of criminal defendant’s own conversion ratio.

The Court disagreed.

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.

In a case law, the Supreme Court concluded that the State of Massachusetts had denied the defendant his Sixth Amendment confrontation rights by permitting a certified laboratory report of the analysis of a substance seized from the criminal defendant to be offered into evidence without the necessity of presenting the analyst as a witness. Noting that “there is little reason to believe that confrontation will be useless in testing an analyst’s honesty, proficiency, and methodology”, the Supreme Court excluded from the reach of the business records rule the product of “regularly conducted business activity the purpose of which is the production of evidence for use at trial” as inherently testimonial. However, the Court also recognized that there exist “business and public records which are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because-having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial-they are not testimonial”.

In another case law, the Court of Appeals invoked a dictum that not everyone “whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case” to underscore its conclusion that “merely machine-generated graphs, charts and numerical data” produced without any “conclusions, interpretations or comparisons” involving “subjective analysis” are non-testimonial within the meaning of the case law. Under this formulation, the records at issue herein remain nontestimonial for purposes of the Confrontation Clause.

Concededly, 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 CPLR 4518a”, 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 in the jurisprudence, whatever the state law definition of business records and the specifics of the foundation rules necessary to admit such records may be. This is in the DUI case.

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”.

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. 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.”

Neither the statute, the regulations nor the exercise of reason 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.

In fulfilling our responsibility to conduct an independent review of the weight of the evidence, the Court accorded 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 was justified in finding the defendant guilty beyond a reasonable doubt”. Upon our review of the record, the Court was satisfied that the verdict was not against the weight of the evidence.

Driving while under the influence of intoxicated drinks may lead to a lot of troubles. Here in Stephen Bilkis and Associates, our Nassau County Drunk Driving lawyers will help you pursue an action against these drivers when the latter injured you. For other concerns, you can also consult our Nassau County Criminal attorneys.

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