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Fiandach & Fiandach (Rochester NY)

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Fiandach & Fiandach - New York's First and Western New York's Only DWI Defense Specialist.
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Cross Examining a BTO

February 13, 2008

Like every phase of trial practice, cross-examining a Breath Test Operator (BTO) begins with preparation.  Initially, this preparation takes the form of discovery.  Unless counsel is fully apprised of each and every detail surrounding the administration of his or her client's test, he or she is woefully unprepared to engage in meaningful cross-examination.  How does one become informed?  Simply by serving a detailed demand requesting every technical and logistical detail surrounding the administration of the defendant's test.  To be strongly discouraged is the practice of attempting to engage in meaningful discovery through the vehicle of a letter requesting "discoverable evidence."  As we point out in NY Driving While Intoxicated, the term "discoverable evidence" is a bit like beauty, for what is or is not discoverable lies squarely within the eye of the beholder.  Moreover, specific demands, as interpreted in People v Vilardi, (1990) 76 NY2d 67, 556 NYS2d 518, bestow enormous benefits by subjecting review on appeal to a reasonable possibility as opposed to a reasonable probability standard.  What does one demand?  A well written DWI demand for discovery encompasses two general areas - technical background and the test itself.  Falling into the first area are certifications for the simulator and ampoule solutions used in administering the test, certification of calibration for the Breathalyzer machine itself, the testing log for the breathalyzer and the operator's certification.  The second area consists of the Breathalyzer checklist, the alcohol influence report form and any notes and memoranda relating to the administration of the test.


So much for discovery.  Statutory discovery is only the initial phase of preparation.  To effectively cross-examine a breath-test operator one must essentially leave the realm of criminal law and begin to view the case as though it was one sounding in products liability.  As anyone who practices in this interesting and unique area of the law will readily admit, discovery under the CPLR or the FRCP is only a start.  Effective preparation requires combing alternative sources such as texts, public records, established computer databases, manufacturers advisories, and the use of requests through NY's Freedom of Information Law.  Through effective use of these sources, the practitioner will find that he or she will quickly accumulate a private library of cross-examination materials.  Our cross-examination file presently contains, among other things, Bureau of Municipal Police BTO and Field Sobriety Training manuals, a New York State Police Breath Test Operator's training manual, manuals published by the National Highway Traffic Safety Administration on field sobriety testing and drug recognition, several operational and service manuals for the Breathalyzer, a Smith & Wesson technical advisory on Radio Frequency Interference, and two sets of Patent documents for the Breathalyzer.

Don't make the mistake of overlooking prior files.  By effectively culling discovery material from closed files, counsel will find that he or she can quickly and economically accumulate an extensive history on a testing device which is used in his or her area.  A related and effective tool is to order a transcript of direct and cross-examination of the breath-test operator after conclusion of a trial.  Such a transcript can be invaluable when one finds him or herself confronted with the same breath test operator.


Now that you have your materials, what do you do with them?  Bear in mind that the finest pre-trial preparation will be all for naught unless it is put to effective use.  You must, therefore, develop a theory.  And what is that theory?  Reasonable doubt.  Throughout voir dire, through cross-examination and on to summation, counsel should be prepared to draw out as many areas of reasonable doubt as he or she can possibly imagine.  One effectual means is to explore assumptions.  By anyone's standards, breathtesting is an endeavor rife with assumptions.  Through effective use of the words like "assume," or "believe", counsel can set forth with dramatic clarity the existence of reasonable doubt.

In a moment we'll review a sample examination, but first let's briefly review several caveats.  First, the Breathalyzer is a machine, it is not an instrument by today's standards.  While BTOs have been vigorously trained to use the word instrument, don't get caught into that trap.  Secondly, a Breathalyzer measures breath alcohol and thereafter attempts to extrapolate the results into blood alcohol.  Don't slide into the self- created trap of using the term "blood alcohol."  In one of the best cross-examinations I ever observed, the attorney managed to subtly yet meaningfully drive the point home by repeatedly saying "blood alcohol as assumed by an examination of breath."  Shorter, although technically incorrect, is the term breath alcohol.  While the astute BTO will correct counsel by saying that the results were "blood alcohol," such a reaction will open the door for counsel to add, "as assumed by a sample of breath."

Sample Examination

What follows is a sample examination.  It is drawn, by and large, from an examination I did about a year ago in the Rochester City Court.  It is, however, only a sample and is provided as an indication of one form of cross-examination.

Q.        Good morning officer.

 

A.        Good morning counselor.

 

Q.        Officer, I believe the Defendant is charged with driving with more than .10 percent of alcohol in his blood stream.  However you never tested his blood that night, did you?

 

A.        No, I did not.

 

Q.        And for that matter you never even saw to it that a sample of his blood was taken.

 

A.        No, I did not.

 


Q.        But the Vehicle and Traffic Law, specifically '1194 gives you the authority to have blood drawn and analyzed, does it not?

 

A.        Well, yes.

 

Q.        Are you familiar with a Becton-Dickenson Kit?

 

A.        Yes.

 

[Do not identify this as a blood drawing kit.  If the Officer answers the next question no, you can quietly retreat without creating the appearance that he drew breath because he did not have the necessary kit]

 

Q.        Did you have one with you that evening?

 

A.        Yes, there is always one in my brief case.

 

Q.        And that's a self contained kit for the drawing of DWI blood samples, isn't it?

 

A.        Yes.

 

Q.        But you chose not to use it and took breath instead.

 

A.        Well, the kit would be used by a doctor at a hospital.

 

Q.        But you have, on prior occasions obtained blood at area hospitals using the kit?

 

A.        Uh, huh.

 

Q.        And the point where the defendant was stopped was only five minutes from St. Mary's Hospital?

 

A.        Correct.

 

Q.        But despite this you chose not to have his blood drawn at the hospital and tested, you tested his breath.

 

A.        That's correct.

 

Q.        And I believe, as you have testified, you indirectly tested his blood by testing his breath?

 

A.        That's correct.

 

Q.        So you are assuming that there is some sort of relationship between the alcohol that he has in his lungs and the alcohol that he has in his blood.


A.        Yes, there is a relationship.

 

Q.        Do you know what that relationship is?

 

[From time to time, it may be argued that this issue may not be raised at trial.  The better view is that questions concerning the blood-breath partition ratio go to weight and are therefor properly raised at trial (see, People v. Singh, 144 Misc2d 402, 542 NYS2d 1018)]

 

[The officer must acknowledge the blood-breath partition ratio.  This can happen one of two ways.  Either the officer will testify to it or you can develop it as follows]

 

A.        Not -- I don't know the technical background of it, no.

 

Q.        But you were trained in that relationship?

 

A.        Yes, it was included in our training on how to operate the instrument.  Part of it touched upon the formula used to convert breath alcohol into blood alcohol.

 

Q.        And you testified that you were trained by the Bureau of Municipal Police?

 

A.        Uh, huh.

 

Q.        If I were to show you a copy of the manual that you used, would that refresh your recollection as to the breath to blood conversion ratio?

 

[A point here is not to use "blood-breath partition ratio.  Conversion is a better term]

 

A.        It may.

 

Q.        I call your attention to page eleven of the manual -- do you now recall what the ratio is?

 

A.        Yes.

 

Q.        What is it?

 

A.        2100 to 1.

 

Q.        Then what the Breathalyzer is doing, if I understand it, is detecting a certain quantity of alcohol in my client's breath and multiplying that quantity by twenty-one hundred?

 


A.        Well the Breathalyzer traps 52.5 cc's of breath and multiplies that by 40 to get 2100 cc's.

 

Q.        Which the manufacturer of the machine assumes has as much alcohol as one unit of blood.

 

A.        Yes.

 

Q.        And you assume as well.

 

A.        Uh, yes.

 

Q.        But you don't know what my client's conversion ratio was on the night of his arrest, do you?

 

A.        No.

 

Q         . . . or on any other night, do you? 

 

A.        No.

 

Q.        And that ratio has been known to vary, hasn't it?

 

A.        Yes, you're right, in fact, it has.

 

[If the officer denied this fact, he could be impeached, to some extent, with his training and his recollections of the ratio as taught]

 

Q.        And you never had blood drawn?

 

A.        No.

 

Q.        And for that matter you didn't draw 2100 cc's of breath, you drew 52.5 which was thereafter multiplied by 40 which you assumed equaled one unit of blood.

 

A.        Yes.

 

Q.        And if the breath contains alcohol it reacts with the chemicals.

 

A.        Yes.

 

Q.        Do things other than alcohol cause this reaction?

 

A.        Some things might.

 


Q.        And the reaction caused by those things would also be multiplied?

 

A.        Ah, yes.

 

Q.        And assumed to be alcohol?

 

A.        It might.

 

Q.        But you assumed it didn't?

 

A.        Well, yes.

 

[The following is effective in the .10 - .15 range]

 

Q.        You testified as to your familiarity with the effect of alcohol on the human body.  You are aware, are you not, that alcohol does not have an immediate effect?

 

A.        Right.

 

Q.        It requires a certain period of time for the alcohol to be absorbed by the body?

 

A.        Right.

 

Q.        And that period could be as short as five minutes or as long as four hours?

 

A.        Well, more like an hour and a half or two hours.

 

[If he did not admit that fact he could be impeached with the training manual]

 

Q.        Then even if we assume that despite the multiplication and the conversion factor that your test was an accurate indication of the alcohol in the defendant's blood, all you can tell me is the blood alcohol content at 1:54, the time he was tested.

 

A.        That's correct.

 

Q.        You therefore assumed that his blood alcohol content was in excess of .10 at the time he was operating?

 

A.        Yes.

 

Q.        But you have no way of knowing what his blood alcohol content was when he was stopped.

 

A.        That's correct.

 


Q.        Now the simulator, you testified that the temperature has to be 34 degrees?

 

[Avoid the use of the terms celsius, centigrade or "c" as much as possible]

 

A.        Plus or minus I believe it's two-tenths.

 

Q.        And that's because of the ratios involved in the conversion process?

 

A.        That's correct.

 

Q.        Because of the need to convert, you have to be certain that the simulator is within two-tenths of a degree of the temperature of human breath.

 

A.        Yes.

 

Q.        That's a critical factor, isn't it?

 

A.        To use the simulator, yes.

 

Q.        So critical that you were trained that if the temperature reported on the thermometer in the simulator varied by more than two-tenths of a degree you could not use it.

 

A.        That's correct.

 

Q.        Because to work, the temperature must be exact.

 

A.        Yes.

 

Q.        And basically the simulator reacts with the machine the same way a person does.

 

A.        Yes.

 

Q.        But although the temperature is critical to the proper operation of the machine, you never took the defendant's temperature that evening, did you?

 

A.        No.

 

Q.        You simply assumed his breath was within two-tenth's of a degree of what the machine expected?

 

A.        Yes.

 

Q.        Did you even ask if he was running any kind of fever?

 


A.        I didn't.

 

Q.        So in reporting that the defendant had a .14 blood alcohol content at the time he operated the motor vehicle you assumed first that the defendant conversion ratio was 2100 to 1.

 

A.        Yes.

 

Q.        . . . Then assumed that all of the chemical detected by the Breathalyzer was alcohol?

 

A.        Yes.

 

Q.        . . .Then assumed that any alcohol he drank that night was fully absorbed into the blood?

 

A.        Uh, huh.

 

Q.        . . .Then assumed that his temperature was within two-tenth's of a degree of 34 degrees?

 

A.        Yes.

 

[Repair orders as contained on the breathalyzer calibration certificate can be helpful, the following illustrates how]

 

Q.        Now the defendant was arrested on December 12, 1993, correct?

 

A.        That's correct

 

Q.        And on January 15, 1994 the unit was calibrated and serviced?

 

A.        I'm not sure.

 

Q.        Take a look at People's exhibit 7 and tell me what was done.

 

A.        It says "reads low, replaced photo-cells, wire brushed piston, recalibrate".

 

Q.        Now the photo cells are critical, are they not?

 

A.        Yes.

 

Q.        If they are not accurate the results are wrong?

 

A.        Possibly


Q.        And when you take a sample of breath you have the subject blow until the piston reaches the top?

 

A.        Correct.

 

Q.        And if the piston sticks the results may be incorrect?

 

A.        Could be.

 

Q.        And one month after my client's test the photo-cells were replaced and the piston was wire brushed.

 

A.        That was preventative maintenance.

 

Q.        Maybe so, but after service it was necessary to recalibrate the machine.

 

A.        Well, yes.

 

Q.        So even if the repairs were not needed, obviously calibration was.  You can't tell me whether the machine was properly calibrated on the night of my client's test, can you?

 

A.        I can only assume from the weekly log that it was.

 

Q.        Yes indeed.  But isn't it a fact that despite the report that the machine reads low, despite the fact that the photo-cells were replaced, despite the fact that the piston needed to be wire brushed and despite the fact that the machine needed recalibration, the weekly log somehow reports that the results were perfect right up to the moment it was repaired?

 

A.        Uh-huh.

 

* * *

 

Be certain to construct good notes of your cross-examination.  On summation you will stress reasonable doubt and proceed to set out each of these areas as indicative of the existence of such doubt.


By all means, do not attempt to use the proceeding in line by line fashion.  Be creative and delve onto any area of doubt you feel is generated by the facts of your case.  The thing to remember throughout your cross-examination is not to overlook the obvious.  All too often those who constantly engage in the trial of the same type of matter tend to begin to take much of what transpires as "usual."  Try to avoid such a mindset and remember that the average juror is acutely aware of the Breathalyzer and is extremely interested in its operation as well.  He or she is anxious to form an independent assessment of reliability.



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