Attorney Raises Questions About NY DWI Machines

When a new breath-alcohol analysis machine used by New York State Police began to experience various glitches in 2009, officials at the time said all the devices were reprogrammed and prosecutors across the state were assured that nobody was wrongfully charged with drunken driving.

At least one local attorney, however, is questioning why defense attorneys and defendants charged with DWI during that time were never told about the potentially defective machines.

The attorney, John Leonard, also is wondering why state police will not turn over all the maintenance records that might prove their official claim that a mathematical flaw in the Drager Alcotest 9510 machine has been corrected.

Until he sees such documentation, Leonard said he’s not convinced that the rights of anyone whose breath is tested by this machine are not at risk.

“How many people are in state prison now throughout the state that never had a chance to know that the machine they blew into potentially had a problem,” Leonard said this week. “District attorneys continue to prosecute defendants on machines they know potentially have a problem, and the defendants never had an opportunity to put that issue in front of the jury.”

State police lawyers said the problems with the Drager machines have been corrected, and suggest that Leonard is “deeply and seriously mistaken” if he believes the devices have ever provided false results to accuse a sober driver of driving drunk.

Every attorney has a right to view the analysis record printed out when a defendant’s breath is tested, and that document alone is proof enough to show whether a Drager machine’s result is in error, state police Deputy Counsel Stephen Hogan explained.

“That’s all there is and that’s all there needs to be, and anybody who reads those results can determine whether there’s an anomaly in the numbers,” Hogan said. “It would be as plain as the nose on your face.”

On 17 occasions across the state in 2009, the new Drager machines resulted in error messages that revealed a defect in one of the two tests used to measure someone’s breath alcohol, according to a letter provided to DAs across the state.

In these cases, state police assured prosecutors the reading would only drift lower than was acceptable. Therefore, the letter states, the result would never go higher than the actual blood-alcohol content level and such a faulty reading would only benefit a defendant.

But Leonard believes such assurances to prosecutors are merely self-serving without offering any proof of repairs, especially when defense attorneys were never told about this glitch. In response, state police say Drager conducts the repairs on its machines, and that attorneys aren’t entitled to that documentation.

“I’m not going to take the state police’s word for it, because they can say anything they want to say,” Leonard said regarding their assurances that the proper repairs were done. “How do we know that? Instead, we have to take the word of Drager, who in turn tells the state police, who in turn tells the DAs, who in turn tells us, and we have no way to verify it.”

When Leonard requests such records, he said state police only provided a one-page Drager maintenance record summary that offers no details other than to state various diagnostic tests had passed and that a single software repair was done.

Leonard believes the law entitles him to see all of the repair records that back-up that summary, but Hogan said such a request is beyond the scope of the law.

Leonard currently has three pending DWI cases in various counties across the Mohawk Valley that involve defendants who were tested around the time this problem was being addressed. And unless state police provide the repair records, Leonard said he is prepared to take his argument in front of a state Supreme Court.

In the meantime, Leonard said he currently is handling a recent case that might suggest a similar error in the Drager machine is still occurring.

One local prosecutor, Oneida County First Assistant District Attorney Michael Coluzza, said it’s wrong to ask state police to prove that the machines were working properly without any proof that a particular case is flawed.

“It’s not an error that caused anybody to fall victim to an artificially high reading,” Coluzza said. “If we honestly felt there was an issue with an instrument out there, where there was credible evidence that the results were high to the detriment of the accused, we’d be the first to take action to review and, if necessary, warrant the dismissal of charges.”



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