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Discover(y) the Key

February 13, 2008

With the onset of the new army of breath testing machines, I'm convinced that pre-trial discovery, or more appropriately, the proper use of pre-trial discovery can be the dispositive difference upon the trial of an alcohol related operating event. While technical violations such as those outlined in People v Corley (1986, 3d Dept) 124 App Div 2d 390, 507 NYS2d 491, and People v English (1984, 3d Dept) 103 App Div 2d 979, 480 NYS2d 56, may be capable of producing results that lay persons may perceive as unjust, that's not what this week's lead note is about. This week we are going to examine the heart of discovery; fairness. Hopefully, both sides will be left with an enlightened sense that pre-trial discovery is not merely a rote exercise but can, when properly used, satisfy the truth process as well.


As much as I hate to do this, any discussion on pre-trial discovery should start with a rudimentary examination of the legal principles involved. There is no general constitutional right to discovery in criminal cases or administrative proceedings. Except as contained within the so-called Brady or Rosario doctrines, such right is entirely a creature of statute. Discussions concerning CPL Article 240 are available in numerous texts, and therefore we won't review them here. Even so, it should be noted that in New York, the statutory right is comparatively broad. As a general rule, if it is in the hands of the prosecution, could be secured by the prosecution with the exercise of due diligence or is intended by the prosecution to be offered at trial, it is discoverable. The procedure that is contemplated by the statute is a demand procedure, that is, no court intervention is initially required. In short and in the perfect world, if the item sought is discoverable, the process intends to employ the Biblical adage, Ask and ye shall receive. Under the broad scheme contemplated by the Legislature, if you ask for it, and the prosecution does not believe that it is discoverable, it must cause a notification to be served that sets forth that the demand is refused. Thereafter, the defense must turn to the court for its assistance through the vehicle of a motion to compel production.

While there are those who still routinely write letters to the prosecutor demanding all the discoverable contents of your file, we have always been trouble by this process. Initially, in essence, it shifts the determination of what is discoverable and what is not to the prosecutor. What's more, the prosecutor knows what he or she has. As we will see in just a few moments, flying blind in this fashion is just plain unwise. Additionally, specificity of the demand can play a dispositive role. In People v Vilardi, (1990) 76 NY2d 67, 556 NYS2d 518, 555 NE2d 915, an arson prosecution, the prosecutor failed to disclose the existence of a ballistics report favorable to the interests of the defendant. Applying State Constitutional principles, the Court of Appeals held that where the non-disclosed material was specifically requested, the standard upon review would be a showing of a reasonable possibility that the failure to disclose contributed to the verdict. Of importance, where no request or only a general request for exculpatory material is made the standard created by United States v Agurs, (1976) 427 US 97, 49 L Ed2d 342, 96 S Ct 2392, is still to be followed in New York. Under this rule, evidence will be considered material only if it would create a reasonable doubt that did not otherwise exist.

Of surprise to many, CPL ' 240.20 contains a section specifically addressed to the trial of alcohol related operating offenses. This section, CPL ' 240.20(k) provides:


(k) in any prosecution commenced in a manner set forth in this subdivision alleging a violation of the vehicle and traffic law, in addition to any material required to be disclosed pursuant to this article, any other provision of law, or the constitution of this state or of the United States, any written report or document, or portion thereof, concerning a physical examination, a scientific test or experiment, including the most recent record of inspection, or calibration or repair of machines or instruments utilized to perform such scientific tests or experiments and the certification certificate, if any, held by the operator of the machine or instrument, which tests or examinations were made by or at the request or direction of a public servant engaged in law enforcement activity or which was made by a person whom the prosecutor intends to call as a witness at trial, or which the people intend to introduce at trial.

 

Of note in this section is that it mandates production of the most recent record of inspection, or calibration or repair of machines or instruments utilized to perform such scientific tests * * * which tests or examinations were made by or at the request or direction of a public servant engaged in law enforcement activity or which was made by a person whom the prosecutor intends to call as a witness at trial, or which the people intend to introduce at trial. The key phrase, as we see it is the most recent. This is important in that prosecutors, in some parts of the state, will maintain that they have complied with their CPL Article 240 responsibilities the moment they ship you the certification of the machine that was done immediately prior to your client's test. The trouble here is that these machines are routinely tested by the Department of Criminal Justice Services on a six month basis. Thus, depending upon where in the cycle the machine was at the time of your client's test, it may very well be that the certification following that test may prove more relevant. CPL ' 240.20(k) is strong support for the argument that the latter certification must be provided. If the test or examination was made by or at the request or direction of a public servant engaged in law enforcement activity, which of course it was, the most recent version of that document must be provided. While the statute provides no guidance as to what is meant by the term most recent, it would seem that the plain meaning of the statute should prevail.


In our practice, we have been quite strenuous in mandating production of all of the reports of inspection and calibration. Why? Wouldn't a report of calibration and inspection done prior to the test and the most recent report be sufficient? Possibly not. Let's review some actual files that have gone to trial in our office within the last month.

In People v CH, the defendant was arrested January 20, 1997. A BreathalyzerJ test performed within an hour of his arrest purportedly disclosed a .22 BAC notwithstanding that the defendant and a witness that was with him the entire evening in question maintained that he had but six beers over a three hour period. Notably, field sobriety tests conducted upon this 23 year old non-habituated individual, in good health, were nearly flawless. Prior to his first trial, (the matter was mistried on two occasions), the People furnished a certificate of calibration dated September 9, 1997. This certificate disclosed that the machine was OK but the shipping screw was not installed, the lamp carriage [was] off track, an open photometer lamp [and] the read light would not come on. Under the listing of repairs made to the device, the report noted a replaced photometer lamp[,] re-assembled photometric system[,] cleaned and adjusted relay contacts[,] calibrated. Also furnished was a report of inspection and calibration dated January 22, 1998. This report set forth that there was solution damage to the lower contacts. It also detailed that along with cleaning the lower contacts, the piston cylinder set was wirebrushed, the header tubing was replaced along with the sleeve, gasket and breath tube, and that the machine was calibrated. At this first trial, a key issue was the fact that the machine was evaluated and repaired the day after the defendant's arrest. The defense maintained that the machine was not in proper working order at the time of the test and that necessitated the inspection slightly four months after the September evaluation.


Following the declaration of the mistrial and prior to the second trial, the People, as a precautionary measure, re-served what they would maintain were the foundational documents. This time however, the documentation was different. The September test document was missing[i] and was replaced by a report dated December 2, 1996. This report set forth that upon inspection the machine was OK, that no repairs were performed and that it was simply calibrated.

Needless to say, the production of the second, previously undisclosed December inspection, dramatically changed the landscape. Now, suspicions ran high as the machine was evaluated a mere three months following the September evaluation, one and one-half months after the December evaluation and one day after the defendant's test. Once again the matter was mistried and upon the third trial the Court, for once fully in possession of the entire sordid history this machine had to offer, found that the documents did not meet the test of reliability set out in People v Donaldson.

From the foregoing, one can see the need for complete discovery. While it must be admitted that the apparent four month re-inspection cycle in CH's case seemed odd, no one, except the prosecutor, could have anticipated the existence of the December test. Further, the need for complete discovery is highlighted by the fact that the non-disclosed report was far from exculpatory in the classic sense. It certainly did not call the defendant's test into question since, on its face, the report tended to establish that the machine was in the proper working order at just over one month prior to the time the evidentiary test was administered. The December report was nonetheless exculpatory in the sense contemplated by Brady v Maryland, (1963) 373 US 83, 10 L Ed 2d 215, 83 S Ct 1194. Recall that Brady says that evidence is exculpatory when it is material to guilt or to punishment. Clearly when one looks to the most unusual timing of the December evaluation in relation to the defendant's test and the immediate inspection and repair, it was Brady material in the classic sense of the term.


CH's situation raises another problem. In most areas of the state, the machines are physically driven to Albany for retesting. At that time, any complaints of improper operation are provided to the testing authorities. How is this information provided? We believe, but have not been able to establish, that a physical form is used. Particularly in the larger counties, it is highly unlikely that the all of the officers with hands on experience accompany the machine on its inspection. Although we routinely request [a]ll reports sent to any testing agency when the [device] used upon this defendant is submitted for testing and/or certification, we are yet to see such a report. Clearly in CH's matter, such a report, if it existed, would have been fallen squarely within the purview of Brady.

The error in CH's case was not the failure to produce the most recent record of inspection, or calibration or repair, but an intermediate report. Another matter where an intermediate report proved dispositive as Brady material was People v JH. In JH's case, we were provided with a test conducted about one month prior to the defendant's test and another done within a month of trial. Each of those documents seemed to describe a BreathalyzerJ which was in proper working order. Upon offering the test at trial however, a different ADA offered not two, but three reports. This time it appeared that midway between the two bracketing reports, the machine was sent to Albany because there was a report that the instrument reads high. Importantly, under the service portion of the report, the repair person candidly noted that this was a condition that he could not duplicate. Needless to say, upon a objection founded upon Brady, the trial court suppressed the test.


In People v RS, we can see the impact of compliance with the most recent requirement of CPL 240.20(k) upon fundamental fairness. RS was arrested on at his home on March 27, 1999, following a civilian report that he sideswiped a parked car. Field sobriety results were fairly good, however, a BreathalyzerJ test administered approximately one hour after his arrest disclosed a .17 BAC. Discovery was demanded, and the People provided a Breath Test Instrument Record of Calibration/Maintenance dated January 20, 1999. This report indicated that the general appearance and condition of the device was OK and, under category seven, noted that they had replaced top header tubing, sleeve, gasket, and breath tube [and] calibrated

Thereafter, at a trial held in October of 1999, the People produced Afoundational documents. This time, along with the January report, the People proffered a Breath Test Instrument Record of Calibration/Maintenance dated August 30, 1999. This time, under the general appearance and condition heading the machine is described as OK, complaint of unknown problem. Under category seven, the technician set forth that he ran numerous tests-no trouble found[,] calibrated. This report, of course, created a problem. It was clearly indicative of the fact that at some time following the January 20, 1999, inspection and repair anomalies were observed. Unfortunately, due to the rather long testing cycle, no one can say for certain when the problem arose. Undoubtedly the material was encompassed by Brady. Accordingly, and with surprisingly little argument on our part, the prosecution offered an impaired in full satisfaction.

RS's matter indicates precisely why, in all fairness, most recent means that which is approximately closest to the trial. But for the fact that this particular assistant district attorney felt that a proper foundation means bracketing either side of the test, this particular mechanical difficulty would not have come to light.

The foregoing is not intended to imply that pre-trial discovery is somehow intended to set-up the prosecution and is of value only when there has occurred a violation. Quite the opposite. Pre-trial discovery can and should yield benefits when properly directed and analyzed.


In People v ML, the defendant was arrested March 14, 1999. A DataMasterJ test conducted shortly after his arrest disclosed a purported blood alcohol content of .15%. Discovery material produced pursuant to the defendant's demand demonstrated that on September 23, 1998, the heading 1, general appearance and condition of this device indicated OK, CAL. Item 6, entitled record any repairs made to this device contained CHECKED SET UP VOLTAGES, COMMUNICATION CHECK, CALIBRATED. On May 17, 1999, the machine was inspected and repaired again. This time, heading 1 (general appearance and condition of this device) indicated OK, CAL., PUMP ERROR, NO BREATH TUBE HEAT. Under item 6, the report noted REPLACED BREATH TUBE, CHECKED AND ADJUSTED SET UP VOLTAGES, CALIBRATED.

Before going further, bear in mind how a DataMasterJ works. The device is designed to read alcohol at the 3.47 micron range. This range is also known to be an absorptive frequency for water vapor. To alleviate potential difficulties created by water vapor, the manufacturer has heated the breath tube to 50 degrees centigrade. Theoretically, this will prevent water vapor contained in the subject's breath from condensing in a cooler breath tube.

Returning to ML's matter, by now the problem should be apparent. With no report as to when the breath tube heater failed, the least the Trial Court could assume is that the condition existed continuously from the time of the defendant's test to the time of the May calibration. Accordingly, the People were precluded from offering the test.


Continuity, or the lack thereof, can oftentimes spell the difference in sorting out discovery. What we mean by continuity is the point in time when the anomaly is broken. In ML's case it could easily be argued (although over an objection of burden shifting) that the defense has an obligation to demonstrate the point in time that the machine failed, on some occasions that may not be so difficult. Take the matter of People v RD. RD was arrested April 1, 1999, and subsequently consented to a DataMasterJ test which disclosed a BAC of .15%. At the time of his test, the DataMasterJ ticket concluded with the words filter error. The words filter error are indeed unusual. Normally, the DataMasterJ is not programmed to report this type of error on the printout. Primarily, this information is reported to the database when such information is retained and downloaded. Additionally, a "filter error" is described in the manual as a situation where the filter solenoid [is] not activating properly. Thus, from what is presented, one can only assume that one or both of the filters did not move properly into position. This machine was initially calibrated, with seemingly normal results, on January 20, 1999, or was it? When the device was initially inspected, the most obvious observation is that the machine was NOT SET UP. At this point, the technician indicated that he RESET THE SET UP PARAMETERS, CHECKED THE SET UP VOLTAGES AND CALIBRATED. On March 29, 1999, well within 6 months, the device again appears in Albany. This time, it was necessary to RUN DIAGNOSTIC TESTS AND SUPERVISOR TESTS after which it was calibrated. Most unusual is that notwithstanding the reported filter error, which is quite clearly referenced in the DataMasterJ operator's manual as an obvious difficulty, it does not seem that it was evaluated and repaired until July 8, 1999, at which point the technician similarly noted the FILTER ERROR and also observed a BROKEN SAMPLE INPUT CONNECTOR, although the condition was also reported as OK. The machine was then seemingly repaired yet no clear cut reference to the cause of the filter error can be found.

So what does all this mean? Well initially, let's look at RD's matter. Initially the test contains the word error. Thus, the defense can successfully argue that the presumption of regularity that the certification documents would ordinarily create has been disrupted. It is now necessary for the prosecution to come forward with proof that the filter error does not fatally taint the results of the test. In this matter, the foregoing proved dispositive of RD's breath test.


Even if you do only a few of these matters, recognize that used breath documents are best handled when they are not archived with the client's matter upon closure. In our office, we maintain a notebook of all breath test anomalies, no matter how insignificant. Let's see why. Assume a hypothetical client is tested upon RD's machine on February 1, 1999, or 2 months before the filter error first appears. Do the documents in RD's matter lend some assistance? Yes, and here's why. Assuming this machine had been set up and in service prior to the January 20, 1999, evaluation when it was found necessary to reset the set up parameters. On can argue that this machine has a spotty electrical history. That not holding a set up is crucial and that this machine, for unknown mechanical or human factors, is unable to do so. The questionable history of this machine is further buttressed by the fact that it is recalibrated less than three months after the January evaluation at which time it was found necessary to run both the diagnostic and supervisor tests. True, the report indicated under General Appearance and condition of the device OK, CAL, but what does this mean? First of all, let's dispense with the term OK. It appears that the DCJS uses this term with any device, with no linkage to condition. Even RD's seriously deficient machine was first described as OK . What of the term CAL? Again, a fair reading of the document does not say that the machine is properly calibrated, quite the contrary. Since in each and every report, where the term initially appears, a calibration is subsequently performed; CAL seems to indicate that calibration is required.


Finally, in the absence of any indication that inspection, calibration or repair was performed between the April 1, 1999, report of a filter error and the July 8, 1999, report of a repair, our office is taking the position that each and every test is suspect. Would this analysis be offset if the particular DataMasterJ ticket at hand did not contain the words filter error. In a word, no. According to the supervisor's manual, printout of the term filter error is discretionary. Whether or not the term will be displayed is one of the functions that is programed in through the auspices of the supervisor's level of supervision.

In short, proper discovery is more than service of a catch-all' demand. It must be well planned and should be done with knowledge of the particular breath testing machine at hand. Once the response is in hand, every effort should be undertaken to determine whether the response is complete. If not, that matter should be brought to the prosecutor's attention, preferably in writing, with a copy of the letter sent to the judge. While this seems to go contrary to the you work it out on your own mentality, the complexity of breath testing virtually mandates that a pointed effort be made to receive each and every document to which you are otherwise entitled.



[i].As was the original at trial. Indeed the People objected when the defendant attempted to offer or even cross-examine concerning the existence of this earlier document.



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