Tuesday, June 19, 2018

New York DWI Breath Testing Victory: A Right to Discovery

The datamaster DMT breath test
New York state uses three machines for breath testing in Driving While Intoxicated cases. They are the Datatmaster, the Draeger, and the Intoxilyzer. The state police exclusively utilize the Draeger and have since time immemorial. Down in the city, and the five boroughs they use the Intoxilyzer units. What they all have in common with one another is The Simulator. What is a simulator? Why is it used with breath testing? Is it that important to the final breath test result?

But the bigger question: Does it matter whether DWI defense attorneys get simulator data? Is the recent victory to get all the information on each and every simulator going to helping the defense of DWI in New York?

Simulators are Checks Against the Machine

Think of a simulator as a reference, a known, a certainty, a control, and a safeguard. Every measuring device requires a check. 

So with a scale it is a known weight of an item. A one pound weight placed on the scale shows that the scale can accurately read a pound if it reads correctly. If not the scale is re-calibrated to precisely indicate the known weight.

Simulators have either a known quantity of ethanol in a liquid or gas solution. This is then run through the machine (the breath analyzer) to yield a result. The solutions are time sensitive because chemicals degrade over time. The machines have to be checked because NYS wants accuracy and reliability. Remember New York is a one test breath state. One breath test (or breath sample) at one time. This is so unlike many other states that take multiple measurement of multiple samples. Some average the sample measurements, or throw out the high and the low.
New York State Police Exclusively Use the Draeger Breath Test

New York State is a One Test One Time Breath Sample Test State for DWI

In the liquid or gas simulator solution is a known amount of ethanol. In New York it could be .01 higher or lower than the reference range. It could be .11 or .09, it doesn't have to be perfectly .10 alcohol concentration. This margin of error is acceptable in NYS breath testing. That's why getting all the information about the simulator is so vital to a defense.

New York State Checks Urine and Blood of Horse Race Winners

What is so funny is New York state treats the winners of horse racing so differently. You see in a NYS horse racing event they check urine and blood to verify the winners were NOT on or using drugs.

New York State Assumes You are an Average Body/Breath Temperature 

What if your BAC in the DWI case is .09? It could be actually be a .08 BAC or .10 BAC. The simulators has many assumptions built in as well. It is based upon a 34 degree temperature because the average breath temperature is 34 degrees. Was your BAC 34 degrees? If it was higher than 34 degrees you may be giving off more alcohol in your breath.

This DWI case had a .10 BAC just .02 over

The 2018 DWI Case: Defendant's Motion to Compel Discovery of Headspace Gas Chromatography Data Granted

Just for reference the headspace gas is the gas above the solution in the simulator. This recent DWI case had the defense wanting the simulator data. They argued all they needed to provide was the breath test result and machine data, why would anyone need to look at the simulator data. The judge said the prosecutor had to hand over the simulator information. This was a defense victory because the prosecutor did not want or feel the need to share the simulator data with the defense.

Here the police had PC (probable cause to make the stop 81 mph in a 50 mph zone and PC to make a DWI arrest. So they also had a legal right to ask for a breath sample.

Defendant is charged in the accusatory instrument with committing the offenses of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs [VTL §1192(2)] under count one; Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs [VTL §1192(3)] under count two and Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs [VTL §1192(1)] under count three.
The misdemeanor information sworn to by P.O. James Fagan alleges that on or about April 3, 2017 at approximately 11:30 P.M. in the county of the Bronx he observed defendant seated behind the steering wheel and operating a Gray Nissan Sedan in that said engine was running and the car was moving on a public street. P.O. Fagan further alleged that he observed defendant operating the vehicle at approximately eighty-one (81) miles per hour in a fifty (50) mile per hour zone. P.O. Fagan also alleged that he observed defendant to have watery eyes, slurred speech and an odor of alcoholic beverage on his breath and defendant stated that he “only had one drink.” Additionally, P.O. Fagan stated that he was present during the administration of a chemical test of defendant’s breath and that defendant’s blood alcohol content was.10 or 1 percentum by weight per volume.

The prosectors love to call their great testing units, instruments. Makes them sound very precise and scientific. Here the court notes margin of error based upon NYS law, .01 up or .01 down.
The instrument used to test defendant’s breath sample in the instant matter was the Intoxilyzer 5000, which is a machine designed to measure the ethyl alcohol in the test subject’s breath. The Intoxilyzer machine is presumed to be reliable (see 10 NYCRR 59.4; People v. Robinson, 53 AD3d 63). However, the results of a breath test from the Intoxilyzer are inadmissible at trial unless the People establish that the machine was in proper working order at the time the test was administered (see People v. Boscic, 15 NY3d 494) and “that the chemicals used in conducting the test were of the proper kind and mixed in the proper proportions,” People v. Freeland, 68 NY2d 699.
In order to ensure that the Intoxilyzer 5000 functions properly, a “simulator test ” must be run prior to or following every breath test [10 NYCRR §59.5(d)]. During the simulator test, the Intoxilyzer 5000 measures the alcohol content of a “simulator solution” which contains a specific quantity of ethyl alcohol and is intended to simulate a known blood alcohol content. In order for the Intoxilyzer machine to be certified as accurate, it must measure the simulator solution to within the limits of plus or minus.01 percent per weight per volume. Thus, if the simulator solution’s actual measurement is.10 percent the Intoxilyzer must register a reading of.09 percent,.10 percent or.11 percent [see 10 NYCRR §59.5(d); Peter Gerstenzang & Eric Sills, Handling the DWI Case in New York §29.11 (2016-2017 ed)].
The prosecution didn't want the defense going over or looking for errors in the simulator. I have found errors over my years defending DWI. They are the exception and not the rule but who cares. DWI defense requires looking at ALL the evidence in a light most favorable to your client.

Prior to the simulator test, the simulator solution is tested in a separate process known as “headspace gas chromatography” which measures the concentration of ethyl alcohol in the simulator solution. Generally, during this process (1) the simulator solution sample containing ethyl alcohol is placed into a small sealed container; (2) this container is then heated producing “headspace gas”; (3) a technician injects a small syringe into the top of the sealed container which collects the sample of the “headspace gas.”; (4) this sample is then placed into a gas chromatogram machine that analyzes the headspace gas to determine the proportion of ethyl alcohol in the sample; (5) the headspace gas chromatograph machine, which is attached to a computer, generates results referred to as gas chromatography (“GC”) data and (6) the technician then reviews the data which includes graphical displays known as “chromatograms” and prepares a report with respect to the level of ethyl alcohol in the simulator solution [see generally Bruno Kolb and Leslie Ettre, Static Headspace Gas Chromatography: Theory and Practice, (2nd ed. 2006); Restek, A Technical Guide for Static Headspace Analysis Using CG (2000)].
Why is the simulator so critical to this DWI defense? Because in this DWI case we have a breath test of just .10 BAC. This is merely .02 beyond the legal limit. Even small errors or margins of error can impact the guilt or innocence of this person.

On April 6, 2017 defendant served the People with a Demand for Discovery including all written documents concerning scientific tests and experiments. The court file indicates that the People served discovery upon defendant on May 1, 2017. The People represent that pursuant to defendant’s discovery request they have provided defendant, in pertinent part, with the calibration and field testing reports of the Intoxilyzer machine that was used to test defendant’s breath.
Defendant now moves this Court pursuant to CPL §240.40(1)(c) to compel discovery of all documentation related to the preparation, testing and analysis of Simulator Solution, Lot Number 16380, including the headspace gas chromatography data, relating to the certified reports generated on December 14, 2016, March 23, 2017 and April 5, 2017, or in the alternative, for an order precluding the prosecution from offering at trial evidence of defendant’s Intoxilyzer result. Defendant claims that such material is discoverable under CPL §240.20(1)(c) and CPL §240.20(1)(k) as “any written report or document, or portion thereof, concerning a physical examination, a scientific test or experiment…” (Lee Affirmation,
13). Defendant asserts that the records with respect to the simulator solution are evidence of whether the calibration of the Intoxilyzer machine was accurate. Moreover, defendant argues that, here, because the Intoxilyzer machine registered a.10 percent level of alcohol in defendant’s breath sample, which is only.02 percent above the legal limit of.08 percent under VTL §1192(2), such records are critical to the defense.
The prosecutor argued against giving the defense the simulator data because the simulator measures nothing. No, but it is used to verify whether the machine functioning properly and accurately.

The People, in opposition to defendant’s motion, contend that the simulator solution paperwork and headspace gas chromatography data are not discoverable under CPL §240.20(1)(c) and CPL §240.20(1)(k) because the simulator solution, although used to verify whether the Intoxilyzer is functioning properly, does not actually test defendant’s breath. Further, the People contend that providing defendant with the documents related to the testing of the simulator solution would create a “slippery slope” of discovery practice wherein defense counsel could then demand “further reports regarding the chromatogram machine itself, reports regarding the various parts and solutions involved in testing and reports regarding the manufacturing of each chromatogram machine…[and]…would be an overwhelming strain on government resources” (Iannuzzi Affirmation, pg. 8

In New York state CPL §240.20(1)(k) governs discovery (how much or how little information we get). But many prosecutors in NYS so often refuse to give up this vital defense information.

CPL §240.20(1)(k), which relates specifically to vehicle and traffic law violations, directs the prosecution to provide, in pertinent part, the following additional discovery:
“…any written report or document, or portion thereof concerning…a scientific test, or experiment, including the most recent record of inspection, or calibration or repair of instruments utilized to perform such scientific tests or experiments and the certification certificate, if any, held by the operator of the machine or machines 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 prosecution intends to call as a witness at trial, or which the People intend to introduce at trial.”
If they only followed in substance as well as form we would be ok but they do NOT.
CPL §240.40(1) provides, in pertinent part, that:
“Upon motion of a defendant against whom an information charging a…misdemeanor is pending, the court in which such accusatory instrument is pending may: (c) order discovery with respect to any other property, which the people intend to introduce at the trial, upon a showing by the defendant that discovery with respect to such property is material to the preparation of his or her defense, and that the request is reasonable.”
The court goes on to explain what the district attorney should provide. By recognizing a right to discovery on DWI cases.
Discovery in criminal cases in New York State is governed by statute (see People v. Colavito, 87 NY2d 423). However, with respect to VTL §1192 prosecutions, the list of discoverable items in CPL §240.20(1)(k) is not an exhaustive list inasmuch as “the statute expressly placed the word ‘including’ immediately prior to listing all discoverable material,” Peter Gerstenzang & Eric Sills, Handling the DWI Case in New York; §20.40 (2016-2017 ed). Indeed, in People v. Robinson, supra, the appellate court held that case law has recognized defendant's right in prosecutions charging driving while intoxicated and related offenses, to disclosure of various documents not expressly listed in CPL §240.20 (see also People v. Alvarez, 70 NY2d 375; People v. Corley; 124 AD2d 390; People v. English, 103 AD2d 979). As such, documents not expressly listed under CPL §240.40(1)(k) but recognized as discoverable include documents relating: to ampoule analysis and simulator solution analysis (see People v. Crandall, 228 AD2d 794); simulator maintenance log for the Intoxilyzer unit used (see People v. DiLorenzo, 134 Misc2d 1000); records that a machine may not have been operating properly (see Matter of Constantine v. Leto, 157 AD2d 376); a breathalyzer operator’s permit, weekly test record, state police rules and regulations, the operational checklist and calibration reports of the Intoxilyzer machine (see People v. Erickson, 156 AD2d 760).
Further, in People v. Ramrup, 45 Misc3d 222(A), the court in granting defendant’s motion to compel discovery, ordered the People to produce to defendant “any and all documents relating to the preparation and testing of the simulator solution, the forensic method utilized in the production of the simulator solution, the standard operating procedure for the production of all simulator solution utilized in defendant’s testing, and the actual chromatograms of the headspace gas chromatography” (see also People v. Torre, 48 Misc3d 745).
Additionally, the Appellate Division, Second Department in Matter of Singas v. Engel, 155 AD3d 877 recently held that trial the court “did not act without jurisdiction or in excess of his authority” when it ordered the People to provide headspace gas chromatography data to the defendant in a VTL §1192 prosecution.
Based on the foregoing, this Court rejects the People’s narrow view that defendant is limited to discovery of the documents that they have disclosed to him. Although, it is factually correct that the headspace gas chromatography machine was not used to analyze defendant’s breath sample, significantly, it was utilized to test the accuracy of the simulator solution which is vital to the “inspection, calibration and repair” [CPL §240.20(1)(k)] of the Intoxilyzer machine itself. Thus, defendant’s demand is clearly “material to the preparation of his…defense and…is reasonable” [CPL §240.40(1)(c)].
Discovery of the data related to the preparation and testing of the simulator solution is particularly important in the instant matter inasmuch as the Intoxilyzer machine registered a reading of defendant’s blood alcohol content to be.10 percent, which is only.02 percent above the legal limit under VTL §1192(2).
In this particular .10 BAC DWI Case the court recognized the necessity of the simulator solution data.
Therefore, logically, if the simulator solution used in this matter was not measured and tested properly, such procedural defects could have a considerable impact on the reliability of defendant’s Intoxilyzer breath test result. Since evidence of a defendant’s blood alcohol content is often dispositive at trial in Driving While Intoxicated cases defendant should not be limited to conclusory reports regarding the preparation and testing of the simulator solution. Rather, he is entitled, through pretrial discovery, to all backup documents related thereto so that defense counsel has a full and fair opportunity to challenge such evidence at trial (see People v. Torre, supra; People v. Brown, supra); (see also People v. Baghai-Kermani, 84 NY2d 525; People v. Flores, 84 NY2d 184; People v. Banch, 80 NY2d 6110; People v. Young, 79 NY2d 365).
Moreover, in considering defendant’s discovery motion this Court is cognizant of the New York Court of Appeals admonition that ” [the] trial of a criminal charge should not be a sporting event…[b]roader discovery enables the defendant to make a more informed plea decision, minimizes the tactical and often unfair advantage to one side, and increases to some degree the opportunity for an accurate determination of guilt or innocence,” People v. Copicotto, 50 NY 2d 222.
Finally, contrary to the People’s contention, defendant’s discovery request is neither overbroad or extensively burdensome since it is confined to the records of a single lot number of simulator solution and pertains to certified reports produced on three specific dates (see People v. Torre, supra; People v. Brown, supra; People v. Ramrup, supra).
Accordingly, pursuant to CPL §240.40(1)(c), defendant’s motion to compel discovery is granted. The People are directed to disclose to defendant and make available for inspection all documents related to the preparation, testing and analysis of Simulator Solution, Lot Number 16380, including the chromatograms of the headspace gas chromatography made in connection with the issuance of certified reports dated December 14, 2016, March 23, 2017 and April 5, 2017.
Order entered accordingly.

Dated: June 5, 2018

Chemical Breath Testing in New York DWI Uses Chemicals

But how can you judge a breath test, a measurement of any kind without seeing what they used for a known, what they used for a reference, if the reference or control was accurate? Chemical breath testing is what all the breath test machines use and we have to check every test against a known amount of chemical. In the case of alcohol breath testing using ethanol.

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