NEW YORK

New York Driving Intoxicated Suppress Statements Lawyers Attorneys - By: Atchuthan Sriskandarajah


The People of the State of New York, Plaintiff, v. Michel Susah, Defendant

District Court of New York, First District, Suffolk County


FACTS:

The State charged defendant with driving while intoxicated, driving with .26% alcohol in his bloodstream, driving without insurance, driving without a valid license, and driving with bald tires. Defendant filed a motion to suppress his post-arrest statements and the results of his breathalyzer test.

ISSUES:

The issue here is whether the post arrest statements of the defendant were validly admitted into evidence.

DISCUSSION:

Defendant moves for an order suppressing all statements made after his arrest, together with the results of the breathalyzer, on the grounds that the police made no meaningful effort to locate defendant's attorney when the defendant answered affirmatively to the policeman's question of whether he wanted an attorney. Defendant refers to the alcoholic influence report produced by the People pursuant to a previous defense motion for discovery of defendant's statements. According to the alcoholic influence report the defendant gave a wrong name but correct phone number of a n attorney. The police called that number at 5:00 p.m. and received no answer. The police officer then asked the defendant if he wished to proceed without a lawyer, and defendant answered yes. Defense counsel argues that the police should have attempted to locate him at his home after they received no answer at his law office, and contend that failure to locate him amounts to a violation of defendant's constitutional right to counsel. The court denied the motion because, in view of the desirability of performing the breathalyzer test early to get the most accurate reading, it was sufficient that the police made one prompt telephone call to the attorney's office. The privilege of consulting with counsel concerning the exercise of legal rights should not extend so far as to palpably impair or nullify the statutory procedure requiring drivers to choose between taking the breathalyzer test or losing their licenses. If the lawyer is not physically present and cannot be reached promptly by telephone or otherwise, defendant may be required to elect between taking the test and submitting to revocation of his license, without the aid of counsel.
JUDGMENT:

The court denied defendant's motion to suppress.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content
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New York Driving Intoxicated Breathalyzer Rebuttable Presumption Lawyers Attorneys - By: Atchuthan Sriskandarajah
The People of the State of New York, Respondent, v. Edward Wilson, Appellant

Court of Appeals of New York

FACTS:

Defendant was arrested for driving while intoxicated after a one-vehicle accident. Defendant was administered a breathalyzer test within two hours of the accident, which registered above the legal blood-alcohol limit. At trial, defendant attempted to rebut the presumption created by the breathalyzer test by arguing that the rate of alcohol absorption was delayed by the food in his stomach with the result that he was not intoxicated at the time he was driving the vehicle. The trial court disallowed the argument but instructed the jury that a conviction was proper if it believed defendant was intoxicated at the time he operated the vehicle. Defendant was convicted and sought review.

ISSUES:

The issue here is whether the results of the Breathalyzer are admissible in evidence.

DISCUSSION:

The court held that that proof of a breathalyzer reading of .10 or more within two hours after arrest established prima facie a violation of § 1192(2) which, together with other evidence was sufficient to sustain a conviction. However, defendant was improperly denied the opportunity of arguing to the jury that his blood alcohol content at the time of operation was less than .10. Second, a jury charge was improper as it may have been construed to impose upon defendant the burden of rebuttal. It is error also to charge that evidence that the individual administering the test possesses a permit from the Department of Health creates a rebuttable presumption that the breathalyzer examination was properly given, and to receive in evidence the logs for the breathalyzer, simulator and ampoule on the basis of foundation testimony which did not establish that it was the regular course of business to make the records contained in those logs at the time of the tests recorded in them or within a reasonable time thereafter. While the scientific reliability of breathalyzers in general is no longer open to question, there must still be either proper foundation testimony under CPLR 4518 (a) or a proper CPLR 4518 (c) certificate to establish that the particular instrument used to test a defendant's BAC and the ampoules used with it had been tested within a reasonable period in relation to defendant's test and found to be properly calibrated and in working order.

JUDGMENT:

The court reversed defendant's conviction for driving while intoxicated.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content

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New York Driving Intoxicated Suppress Breathalyzer Lawyers Attorneys - By: Atchuthan Sriskandarajah
The People of the State of New York, Respondent, v. John Austin, Appellant

Supreme Court of New York, Appellate Division, Fourth Department


FACTS:

Breathalyzer test results taken from defendant were admitted into evidence under the common-law business records and public documents exceptions to the hearsay rule, even though the trial court found that the documents were not admissible under N.Y. C.P.L.R. 4518 or 4520. Defendant appealed a judgment by the Monroe County Court (New York), which convicted him of driving while intoxicated and speeding, and argued that his motion to suppress breathalyzer test results should have been granted.

ISSUES:

The issue here is whether Breathalyzer results are admissible in evidence.

DISCUSSION:

The court held that it was error to admit the test results on these grounds. The court held that in order for a breathalyzer test to be admitted, evidence had to be introduced on whether the breathalyzer was in proper working condition when the test was given to defendant and that the chemicals used in the test were of the proper kind and in the proper proportion. The court held that this foundational requirement had to be met by documentary proof. In this case, the court found that the state had failed to provide the appropriate documentation. For example, the court noted that there was a lapse of 11 to 7 months between the date of defendant's test and the certification of the breathalyzer documents. The court held that because the documents lacked appropriate authentication, it was error to admit them. Thus, the court held that defendant's conviction for driving while intoxicated had to be reversed. Since the results of the breathalyzer test were impermissibly received in evidence against defendant, his conviction for violation of Vehicle and Traffic Law § 1192 (2) must be reversed. Moreover, it is not possible on this record to find that the breathalyzer test results did not also infect defendant's conviction for violation of Vehicle and Traffic Law § 1192 (3), and it also must be reversed. No issue is raised on appeal as to the validity of defendant's conviction for speeding, and it should be affirmed.

JUDGMENT:

The court reversed defendant's conviction on driving while intoxicated, but affirmed his conviction on speeding. Defendant's breathalyzer test results should not have been admitted at trial under the business records or public documents exception to the hearsay rule because the state did not provide proper foundation and authentication of the documents.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content

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New York Driving Intoxicated Breathalyzer Potential Error Lawyers Attorneys - By: Atchuthan Sriskandarajah
The People of the State of New York, Plaintiff, v. Richard Decardo, Defendant

Criminal Court of the City of New York, New York County

FACTS:

Defendant filed a motion to suppress a breathalyzer reading taken less than one hour after his arrest on a charge of driving while intoxicated. Defendant claimed that under present circumstances the potential for error in breathalyzer testing was sufficient to exclude his blood alcohol content (BAC) reading from evidence.

ISSUES:

The issue here is whether Breathalyzer test results were admissible in evidence.

DISCUSSION:

The court denied the motion except to the extent of ordering an evidentiary hearing. Defendant first disputed the premise of the breathalyzer, which is based on a fixed conversion ratio determining BAC from the concentration of alcohol in a breath sample. The court acknowledged that evidence exists that individuals' conversion ratios vary, but defendant had produced no evidence of his own conversion ratio. The court noted that this issue went to the weight of the evidence rather than its admissibility, but the court did schedule an evidentiary hearing to permit defendant an opportunity to present such evidence. The second argument, concerning the reliability of the chemicals used in the breathalyzer test, was also a matter for an evidentiary hearing. The People had the burden of proving that the test was properly administered, but because the test was generally accepted in the scientific community, they did not have to prove the validity of the scientific principles underlying the test. Defendant would have the burden of proving that the test was inaccurate.

JUDGMENT:


The court denied defendant's motion to suppress breathalyzer test results, but did order a pretrial evidentiary hearing to permit defendant to present evidence challenging the accuracy of the test.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content

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New York Driving Intoxicated Breathalyzer Potential Error Lawyers Attorneys - By: Atchuthan Sriskandarajah
The People of the State of New York, Plaintiff, v. Richard Decardo, Defendant

Criminal Court of the City of New York, New York County

FACTS:

Defendant filed a motion to suppress a breathalyzer reading taken less than one hour after his arrest on a charge of driving while intoxicated. Defendant claimed that under present circumstances the potential for error in breathalyzer testing was sufficient to exclude his blood alcohol content (BAC) reading from evidence.

ISSUES:

The issue here is whether Breathalyzer test results were admissible in evidence.

DISCUSSION:

The court denied the motion except to the extent of ordering an evidentiary hearing. Defendant first disputed the premise of the breathalyzer, which is based on a fixed conversion ratio determining BAC from the concentration of alcohol in a breath sample. The court acknowledged that evidence exists that individuals' conversion ratios vary, but defendant had produced no evidence of his own conversion ratio. The court noted that this issue went to the weight of the evidence rather than its admissibility, but the court did schedule an evidentiary hearing to permit defendant an opportunity to present such evidence. The second argument, concerning the reliability of the chemicals used in the breathalyzer test, was also a matter for an evidentiary hearing. The People had the burden of proving that the test was properly administered, but because the test was generally accepted in the scientific community, they did not have to prove the validity of the scientific principles underlying the test. Defendant would have the burden of proving that the test was inaccurate.

JUDGMENT:


The court denied defendant's motion to suppress breathalyzer test results, but did order a pretrial evidentiary hearing to permit defendant to present evidence challenging the accuracy of the test.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content
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New York Driving Intoxicated Breathalyzer Ampoule Test Lawyers Attorneys - By: Atchuthan Sriskandarajah
The People of the State of New York, Plaintiff, v. Mathew Wilson, Defendant.

JUSTICE COURT OF NEW YORK, TOWN OF BRIGHTON, MONROE COUNTY

FACTS:

The defendant in this case was charged with three violations of the Vehicle and Traffic Law: failure to stop for a red light; driving while intoxicated; and driving while intoxicated per se, all alleged to have occurred in the Town of Penfield on November 21, 1993. Defendant made a written motion requesting a ruling in limine excluding the results of the breathalyzer test administered to him on the specific ground that, of the four chemicals reflected in the record of analysis breath analyzer ampoules (hereinafter ampoule test record), one was identified as silver rather than silver nitrate.

ISSUES:

The issue here is whether the ampoule test record is competent and admissible and consequently whether the result of the breathalyzer test is admissible.

DISCUSSION:

As a foundational requirement for the admission of breathalyzer test results, evidence must be introduced both that the breathalyzer was in proper working condition when the test was given to defendant, and that the chemicals used in the test were of the proper kind and in the proper proportion. Out of practical necessity, the foundational requirement may be met by documentary proof. While breathalyzer documents may thus properly be received under the business records exception to the hearsay rule enunciated in N.Y. R. Crim. P. 4518, admissibility is conditioned upon strict compliance with the provisions of subdivisions (a) and (c) of that section. In certain situations, silver, as opposed to silver nitrate, could have been used as a catalyst. If the intention of the draftsperson of the ampoule test record was to indicate silver nitrate by the use of the words "catalyst silver," such usage was sloppy at best. The court found that the additional written material offered by the State in opposition to the motion on the day of trial, which consisted of a memorandum, did not address the precise issue being decided. The court found that the ampoule test record was incompetent and inadmissible and consequently the results of the Breathalyzer test inadmissible. The court therefore held defendant was not guilty of the charge of driving while intoxicated per se. The court found defendant guilty of failure to stop for a red light. Defendant was also found guilty of violating N.Y. Veh. & Traf. Law § 1192(1).

JUDGMENT:

The court held that defendant was not guilty of the charge of driving while intoxicated per se. The court found defendant guilty of failure to stop for a red light and for driving while intoxicated.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content

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New York Driving Intoxicated Admissible Evidence Breathalyzer Lawyers Attorneys - By: Atchuthan Sriskandarajah
The People of the State of New York, Respondent, v. George A. Donaldson, Appellant

Supreme Court of New York, Appellate Division, Fourth Department

FACTS:

Defendant was pulled over after the officer observed defendant driving across lanes and onto the shoulder of the road. When the officer noticed defendant's slurred speech and bloodshot eyes and smelled alcohol on defendant's breath, defendant was arrested and given a Breathalyzer test that confirmed defendant's intoxication. Thereafter, defendant was charged with operating a vehicle while in an intoxicated condition, and during trial, the results of the test were admitted into evidence. Following defendant's conviction, defendant sought review, claiming the test had been inadmissible without proof that the Breathalyzer was scientifically reliable and that the test had been properly conducted.

ISSUES:

The issue here is whether the results of the test were improperly received.

DISCUSSION:

The court held the officer had been justified in testing defendant because defendant's driving and appearance had afforded reasonable grounds to believe defendant was intoxicated. The court also held it was not longer necessary to require expert testimony to establish the Breathalyzer's general reliability. The long usage and wide acceptance of the Breathalyzer as an instrument for analyzing the breath in order to determine the percentage of alcohol in the blood render it unnecessary to require expert testimony to establish its reliability, or the nature, function or scientific principles underlying it. Moreover, by providing that the results of the chemical analysis of breath tests are admissible into evidence the Legislature has obviously determined that breath tests, if conducted in accordance with proper procedures, are scientifically reliable for determining the percentage of alcohol in the blood. Finally, the court held that the administering officer's training and experience had been adequate evidence of the Breathalyzer's operation. The officer who administered the test showed that he was qualified. The instrument was properly calibrated and the chemicals used were of the proper kind mixed in the correct proportions. It was not error to have admitted in evidence the results of the test.

JUDGMENT:

In affirming a judgment that convicted defendant of operating a vehicle while in an intoxicated condition after the results of a blood-alcohol test, as measured by a Breathalyzer, were admitted into evidence, the court held that the Breathalyzer was scientifically reliable and that the test had been properly conducted.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content
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New York Driving Intoxicated Exclude Breathalyzer Evidence Lawyers Attorneys - By: Atchuthan Sriskandarajah
The People of the State of New York, Respondent, v. Arthur James, Appellant.

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT

FACTS:

Defendant appealed from the judgment of the Yates County (New York) that convicted him of two felony counts of driving while intoxicated. Prior to trial, defendant moved to exclude the breathalyzer test result on the ground that the foundational evidence relied upon by the People failed to establish the proper chemical composition of the ampoules used in the test. The trial court denied the motion.

ISSUES:

The issue here is whether the testing device was in proper working order at the time the test was administered and that the test was properly administered.

DISCUSSION:

Proof that the operator of the breathalyzer was certified by the Department of Health to conduct breathalyzer tests is presumptive evidence that the test was properly given. The record of analysis was properly admitted as evidence from which the trier of fact could reasonably conclude that the chemicals used in conducting the test were of the proper kind and mixed in the proper proportions. Defendant's submissions challenging the accuracy of the information contained in the record of analysis go to its weight, not its admissibility, and did not so undermine the probativeness of the People's foundational evidence as to render the breathalyzer test results inadmissible. Since defendant admitted to two prior convictions of driving while intoxicated at his arraignment upon the special information filed by the People, the proof was legally sufficient to establish defendant's guilt of driving while intoxicated as a felony.

JUDGMENT:

Judgment was affirmed. The certified record of analysis of breathalyzer ampoules was admissible in evidence as a business record, and he issues raised by defendant went to the weight of evidence, not its admissibility.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content

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New York Driving Intoxicated Weaving Yellow Line Miranda Lawyers Attorneys - By: Atchuthan Sriskandarajah
THE PEOPLE OF THE STATE OF NEW YORK against John Mazula

CRIMINAL COURT OF THE CITY OF NEW YORK, RICHMOND COUNTY

FACTS:

Defendant was allegedly observed driving a car that was weaving back and forth over a double yellow line, at one point almost hitting a parked car. One of the police officers found that he could smell a strong odor of alcohol coming from the car. This officer observed Defendant walking in an unstable fashion and that Defendant had bloodshot eyes and a strong smell of alcoholic beverage. Defendant was asked to take a roadside sobriety test, which he agreed to do. The results of that test indicated a blood alcohol level of .138. Defendant was arrested, and while he was being taken to the police station for booking Defendant was given his Miranda warnings. Defendant also refused to take a breathalyzer (intoxilizer) test. Defendant moves to suppress his statement, the results of the roadside sobriety test, and evidence of his refusal to take the breathalyzer test.

ISSUES:

The issue here is whether statements made by Defendant as well as the results of a field sobriety test, and his refusal to take a breathalyzer test should be suppressed at the trial.

DISCUSSION:

Defendant was observed swerving back and forth over a double yellow line, a fact to which Defendant admits. Defendant's argument that the nature of the road in question made such driving inevitable is unpersuasive with respect to the issue of probable cause for the stop. Since all the testimony affirms that Defendant was driving over the yellow lines, the court concludes that the police did have probable cause to stop Defendant's car.
Defendant argues that his refusal to take the breathalyzer test should be suppressed because his refusal was based on the police officers advising him that it was in his best interest not to take the test. The People introduced into evidence a videotape of Defendant's refusal to take the breathalyzer test, which the court has viewed. Defendant's comportment on the videotape does not demonstrate that he was acting under any form of compulsion or duress, and the court finds that his manner does not appear to be consistent with Defendant's assertions that the police advised him to decline the tests.

JUDGMENT:

Based on that videotape and the testimony elicited at the hearing, the court concludes that Defendant's refusal to take the breathalyzer test was voluntary and knowing, and that the police adequately informed Defendant of the consequences of a refusal to take the breathalyzer test. Therefore, the court concludes that evidence of Defendant's refusal to take the breathalyzer (intoxilizer) test is admissible at trial.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content
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New York Driving Intoxicated Pretrial Hearing Suppress Refusal Lawyers Attorneys - By: Atchuthan Sriskandarajah
The People of the State of New York, Plaintiff, v. Williams Con, Defendant

Criminal Court of the City of New York, New York County

FACTS:

Defendant was arrested and charged in information with reckless driving and driving while intoxicated. It is alleged that the arresting officer observed defendant, operating a motor vehicle, drive through a red light. Upon inspection, the officer noticed the defendant had watery and bloodshot eyes, slurred speech, an odor of alcohol on his breath and that he was unsteady on his feet. Defendant was placed under arrest for driving while intoxicated and, after being advised of his rights under Vehicle and Traffic Law § 1194, refused to submit to a breathalyzer examination. Defendant filed a motion against plaintiff state to dismiss the count of the information charging reckless driving as being defective on its face and to suppress defendant's refusal to submit to a breathalyzer examination on the ground that he was not properly advised of the consequences of his refusal.

ISSUES:

The issue here is whether pre-trial hearing on the admissibility of the refusal should be conducted by the Trial Judge immediately prior to the start of the trial.

DISCUSSION:

The court held that there was neither a statutory nor a constitutional right to a pretrial hearing on a motion to suppress evidence of a refusal to submit to a breathalyzer test on the ground that the police failed to follow procedure in N.Y. Veh. & Traf. Law § 1194. The court also held that defendant's refusal to submit to the test did not involve the 5th Amendment privilege. The court held that the admissibility of defendant's refusal to submit to a breathalyzer test was a preliminary question that had to be determined prior to jury selection. Further, the court held that where it was alleged that the police did not comply with the requirements of § 1194 and a hearing was sought on the admissibility of that evidence, the matter had to be referred to the trial judge for such a hearing immediately prior to jury selection. The court dismissed the reckless driving count in the information because the state conceded that the count was not properly made out in the information.

JUDGMENT:

The court held that defendant was entitled to a pretrial hearing on the admission of the evidence from the state regarding defendant's refusal to submit to a breathalyzer test.

Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content
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