DWI in New York: Suppressing the Breathalyzer Part I

New York Criminal attorneys must always stay on top of recent judicial decisions in order to effectively advocate for their clients whether they are representing a client in Brooklyn for Robbery, White Plains for Forgery or Manhattan (NY County) for Prostitution in relation to an escort service. A recent decision relating to DWI in the Bronx on July 21, 2008 exemplifies this need to constantly be aware of decisions made by judges throughout New York State.

In People v. Netania Holbrook, Justice Richard Lee Price of the Bronx County Supreme Court (the court where felony cases are heard), granted a motion to suppress breathalyzer results taken two hours after the arrest of the defendant for DWI.

Citing People v. Atkins, 85, NY2d 1007 (1995), the Court recognized that merely because a breathalyzer is administered more than two hours after an arrest for DWI does not make the test and its results inadmissible at trial. Although Vehicle and Traffic Law ´ŻĄ1194(2) and the New York State Department of Health Regulations (10 NYCRR 59.2[c][2]) mandate that a Blood Alcohol Content Test (BAC) must be administered within two hours of arrest, the results may be admissible if an expert testifies and establishes that the results of the BAC test were indicative of the BAC at the time the defendant was operating the vehicle and that the test itself was scientifically reliable. See also People v. Victory, 166 Misc.2d 549 (Crim. Ct. Kings County 1995).

In addition to establishing that the BAC test was reliable and indicative of the BAC at the time the defendant was operating the vehicle, the People (prosecution) are not entitled to any legal presumption that the BAC test is, in fact, admissible. Instead, to prove the scientific reliability of that BAC test that exceeded two hours from arrest, the People need to prove this reliability at a hearing prior to trial and to prevent the suppression of that evidence. See also Victory.

Agreeing with the rationale established and set forth in Atkins and Victory, Justice Price suppressed the breathalyzer test and results finding that the “People inexplicably presented no testimony, scientific or otherwise, to establish that the test administered to the defendant more than two hours after her arrest was competent, reliable and probative of the fact that she was impaired or intoxicated when she operated the vehicle.” In short, the People failed to present expert testimony, or any testimony, establishing this reliability.

Clearly, the Holbrook decision and the cases that preceded it are critical rulings that a New York defense attorney should know backwards and forwards and be prepared to utilize for their DWI clients if the circumstance presents itself. While suppressing the results a breathalyzer does not guarantee a victory at trial or that the prosecution will surrender their case, suppressing the evidence clearly makes prosecution that much more difficult and greatly enhances a client’s defense.

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