New York Driving Intoxicated Breathalyzer Admissible Evidence Lawyers Attorneys

by

Atchuthan Sriskandarajah

The People of the State of New York, Respondent, v. Garret, Appellant

County Court of New York, Tompkins County

FACTS:

While driving his automobile, defendant struck and injured a pedestrian. A police officer, upon smelling alcohol on defendant’s breath and learning that he had been drinking, arrested defendant and took him to the police station. Defendant was then given a breathalyzer test, which showed a blood alcohol concentration of .18 of 1 percent, and he was later convicted of driving while intoxicated under N.Y. Veh. & Traf. Law 1192(3). Defendant challenged the judgment.

ISSUES:

The issue here is whether the results of the

breathalyzer

are admissible in evidence.

DISCUSSION:

The court held that the jury charge, which referenced defendant’s failure to take testify, was not harmless error. The charge to the jury that they could find defendant guilty under 1192(3), regardless of what manner he operated the automobile, if they found that he had operated a vehicle with .12 percent or more of alcohol by weight in his blood, was improper and prejudicial because such evidence was relevant, but not prima facie evidence in determining whether defendant was intoxicated. The police was only required to give the breathalyzer within two hours of the arrest and evidence that the breathalyzer was operating properly by calibration records a reasonable time before and after the test should be introduced.

JUDGMENT:

The court reversed defendant’s conviction for driving while intoxicated and returned for a new trial.

Disclaimer:

These summaries are provided by the

SRIS Law Group

. They represent the firm s unofficial views of the Justices opinions. The original opinions should be consulted for their authoritative content

Atchuthan Sriskandarajah is a Virginia lawyer and owner of the SRIS Law Group. The SRIS Law Group has offices in Virginia, Maryland, Massachusetts,

New York

, North Carolina & California. The firm handles criminal/traffic defense, family law, immigration & bankruptcy cases.

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