A new an innovative tactic among New York criminal defense attorneys who defend driving while intoxicated charges is to challenge the breathilizer records based upon the Sixth Amendment’s right of confrontation. A recent decision gives New York criminal defense lawyers a new weapon in the fight against driving while intoxicated (DWI) charges.
There is a conflict between the Sixth Amendment which gives the accused the right to confront the witnesses against him and New York’s business record rule which allows records into evidence based upon a certification. Typcially in a New York driving while intoxicated (DWI) trial, the prosecutors will just offer the breathilizer records into evidence based on the certificate, without calling the operator. This deprives the criminal defense lawyer from being able to cross examine the operator and thereby challenge the reliability of the breathilizer’s reading.
In People v. Carreira, 893 N.Y.S.2d 844 (N.Y.City Ct.,2010), the Court held that in DWI cases both the simulator solution and calibration records are testimonial for Sixth Amendment purposes and therefore inadmissable unless the New York prosecutor presented live testimony from the person who prepared them. The court went on to note that the business records exception does not appy where the regularly conducted business activity is the production of evidence for use at trial.
The Court also stated that the Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials. One commentator asserts that “[t]he legal community now concedes, with varying degrees of urgency, that our system produces erroneous convictions based on discredited forensics.
