The New York Court of Appeals rejected the contention of a Yates County, New York drunk driver that his constitutional right to confront witnesses against him, as spelled out by the U.S. Supreme Court in Crawford v. Washington, was violated when a County Court judge refused to produce at trial the experts who maintain the devices.

The court ruled that the three breathalyzer records sought by the defendant are akin to business records as described as CPLR 4518[a],which, as a class, are generally deemed non-testimonial. Two of the documents certified that the breathalyzer had been calibrated by the New York State Division of Criminal Justice Services in Albany and the third said a sample of an ethyl alcohol solution used in the device was analyzed and approved by the New York State Police.

The court ruled that the breathalyzer testing certificates do not directly inculpate the defendant or prove an essential element of the charges against him. All three records simply reflected the objective facts that were observed at the time of their recording in order to establish that the breathalyzer would produce accurate results, rather than to prove some past event.

The inspection and calibration of the breathalyzers used to determine if drivers are drunk are non-testimonial. Defendants do not have a constitutional right to cross-examine the technicians who service them. The ruling upheld the felony DWI conviction and the 2 1/2-to-7-year sentence he received for his third DWI conviction. The breathalyzer recorded his blood alcohol level at 0.15 percent when he was arrested for driving while under the influence.

If you need assistance with a DWI arrest in WNY, contact Friedman & Ranzenhofer at 585-484-7432.