Wednesday, February 8, 2017

Ithaca DWI Defense: Waging the New York DWI Extrapolation Defense

I like to use my own plow
In a previous post I discussed the New York DWI extrapolation defense. Remember that with any breath test DWI (VTL 1192 (2)) that the district attorney (the prosecutor) must prove beyond a reasonable doubt that your BAC was at or above .08 BAC. The law states at time of operation which in many DWI cases means at time of the police stop of your car. The extrapolation defense questions New York's single test result as INSUFFICIENT circumstantial evidence of a person's DWI guilt. Legally speaking how do we wage such a defense in Court?
 In the Majority of Breath Test Cases Going to Trial a Defense Expert Increases the Chances of Victory

You know in every New York DWI case involving a breath test the prosecution is using a BTO (breath test operator) to explain and bring in that chemical test result evidence. I am not of the mind that you plow a field with another man's plow. Now before I get religious on you just remember there is much wisdom within the bible even for us defense lawyers.

To Get the Result You Want You Must Focus on Your Own Theory of Defense

Why is that? Why must I plow with my OWN Expert? Because I am going to have a hard if not impossible time of crossing their police biased BTO to give me what I want. I may get them to allude to extrapolation, and that the BAC could have been higher or lower BUT I want an expert that will make an expert determination that the BAC was in fact lower at the time of driving. Any seasoned and trustworthy expert has to review all the facts of the case and then make a determination whether they can in fact testify to this in Court. I nor the expert can lie about the facts but we can come up with an ALTERNATIVE BAC determination than the prosecution's one test theory of circumstantial DWI (drunk driving) guilt.

New York State Courts Show Favor to the Extrapolation Defense

Remember that New York law is in a favor with the DWI extrapolation defense. The main case on DWI extrapolation is People v. Mertz, 68 N.Y.2d 136 (1986). The court in Mertz stated that a BAC test taken within two hours of arrest is strong but NOT conclusive evidence of the BAC during operation (driving).

The New York Court Even Mentions Using an Expert for the DWI Extrapolation Defense

The court goes on to recognize that the one chemical test plus some other indicators of intoxication (odor of alcohol, incoordination, speech) is a prima facie (on it's face) enough to sustain a conviction for DWI BUT the defense could show evidence, expert or other from which the jury could conclude that the defendant's BAC at the time of operation was less than the legal limit (Mertz day was .10) of .08 BAC.

Remember finally that on ANY chemical test of alcohol level given AFTER driving there is an equal possibility of DWI innocence as there is DWI guilt. After all absent real proof that a specific single BAC test does in fact relate back to the time of driving who can really say that the prosecution's evidence of BAC is truly sufficient? Does this single BAC test evidence establish proof of drunk driving guilt beyond a reasonable doubt. I say NOT!