A Rochester resident arrested for drinking and driving has all the rights of a defendant not only under New York State law, but also under federal law.

The Sixth Amendment of the U.S. Constitution specifically requires that anyone accused of a crime be given the opportunity to confront the witnesses in his or her case.

While New York has some exceptions to the right to confront witnesses at trial that allow for certain documents related to the breath test to be admitted at trial without the defendant having a right to confront the person who did the testing – such as documents establishing that the breath test machine was periodically checked and maintained – this exception does not apply when it comes to documentation of the defendant’s breath test itself.

The U.S. Supreme Court has specifically addressed this issue in a drinking and driving case that originally arose in New Mexico.

The prosecution sought admittance of the defendant’s alleged blood alcohol content result without calling the analyst who had completed, signed and certified the report.

The trial court had admitted the report as a business record in a manner similar to how New York allows documents regarding maintenance of the breath test machine to be admitted at trial.

Among other issues, the Supreme Court noted that the report was made for the specific purpose of proving a fact in a criminal proceeding and was, therefore, testimonial in nature.

As a result, the defendant had the right to confront the person who conducted the test and prepared the report.

Based on the Supreme Court’s decision, the breath test operator should be required to testify before the results of any breath test are admitted as evidence.

If you took the breath test, you need an experienced DWI lawyer who understands the evidence against you.We can be reached at 585-484-7432.