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Defendant Raises Question Over Use of Breathalyzer Tests Admitted as Evidence in DUI Case


In January of 2005, a man received two moving violations: one for speeding and one for a New York DWI. Because a New York DWI is a criminal violation, the man was not only ticketed but also arrested and faced criminal charges. There were two officers involved in the interaction with the man: an arresting officer and a law enforcement officer who administered a breathalyzer test to determine his blood alcohol content.

According to evidence presented at a subsequent trial before a judge, the arresting officer testified that the man was driving east on Route 404 in Webster, NY at around 2:03 in the morning on the night of the alleged New York DWI. The arresting officer noticed the man was driving too fast and his radar gun subsequently revealed that the man was driving 55 miles per hour in a 40 MPH zone.

Because of the alleged speeding violation, the officer turned on the emergency lights on his marked police vehicle and pursued the man into a drug store parking lot. The officer then ordered the man to exit the car at gunpoint, doing so because he believed the man had taken too long to stop. When the man exited the vehicle, the officer noticed signs of intoxication, including the smell of alcohol, slurred speech and red eyes.

After being read his rights, the defendant said he would speak with the officer anyway and admitted he’d taken cold medicine and had a few beers. The officer put his gun away because he no longer believed the defendant was a threat, and proceeded to administer a variety of field sobriety tests including asking the defendant to say the alphabet from C to V; asking him to walk and turn; and asking him to stand on one leg. The officer reported that the defendant failed all of these tests and was thus taken into custody and transported to the police station.

At the police station, a different officer- a breath test operator- administered a breathalyzer test. This officer testified next at trial, indicating that the breath test revealed that the defendant had a BAC of .15 percent. During this testimony, a number of documents were admitted into evidence relating to the maintenance and calibration of the breathalyzer machine; these documents were admitted to prove to the court that the breathalyzer was functioning properly at the time when the BAC test was administered.

The breath test operator testifying in the case indicated that he did not have any connection to the preparation of the documents related to the maintenance of the breathalyzer.

This sequence of events gave rise to the man’s action before the court. The objection raised asserted that the man was not given the opportunity to confront the witnesses against him since he was unable to confront or question the person who had prepared the breathalyzer calibration documents that were admitted as evidence. The sixth amendment guarantees a defendant’s rights to question or confront witnesses against him. The court, therefore, considered whether it was a violation of the defendant’s sixth amendment rights to admit the evidence of the breathalyzer’s calibration.

The court acknowledged that the breathalyzer calibration information records was hearsay evidence and that there is controversy surrounding the admission of this evidence due to evidence rules limiting the admissibility of hearsay. However, the court also indicated the importance of distinguishing between testimonial hearsay evidence and non-testimonial hearsay evidence. Hearsay that is offered as non-testimonial can be admitted without giving a defendant a prior opportunity for cross examination.

After a review of past case law relating to the definition of and characteristics of testimonial evidence, the court concluded that the maintenance records on the breathalyzer were prepared by a government agency in the ordinary course of business. Because they weren’t prepared with a particular person in mind and were objective measurements, they could be admitted in court even without the person preparing them being present for the defendant to question.

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