DA Suing Judge Over DWI Ruling

DA suing judge over DWI ruling
10/25/05

Monroe County District Attorney Michael Green is taking the extraordinary step of suing an Irondequoit town judge. The issue is whether the judge's ruling in a DWI case has the potential of letting drunken drivers off the hook.

It happens every night. Police pull over a motorist suspected of drunk driving. Along with the officer's own observations, and field sobriety tests, police use a breathalyzer, a chemical breath test machine, to determine a person's blood alcohol level. But how accurate are they and how often are the machines recalibrated?

Irondequoit town justice John DeMarco has ruled that documents put into evidence stating the machines are accurate are not enough. He says the prosecution needs to have a live witness to say that in court.

One of the cases involved a client of defense attorney Gary Muldoon.

“If you have a document that's offered into evidence without a live person, the defense is stymied in questioning whether that information is valid.â€

Judge demarco apparently made his decision based upon a 2004 U.S. Supreme Court ruling that redefined a defendant's constitutional right to confront his accusers.

The documents in this case are clearly made only for the purpose of litigation and that makes them suspect. The only purpose of the breath test documents is to convict a defendant,†said Muldoon.

But district attorney Michael Green says the Supreme Court ruling does not apply to business documents like the papers certifying the breath test machine is calibrated.

“In that ruling, Judge Scalia specifically said that we're not talking about business records. We understand that business records come into evidence. We're talking about a situation where an eyewitness to a crime gives a deposition and the prosecution just wants to put in the deposition instead of calling the eyewitness.â€

District attorney green says to bring experts here 1,800 times a year for DWI prosecution cases would be an unreasonable burden. And it would cost taxpayers millions of dollars.

The district attorney cannot directly appeal DeMarco's decision so he is asking a state Supreme Court judge to stop further rulings.

“The Court of Appeals has specifically recognized the rights of prosecutors to challenge certain court rulings in this fashion.â€

And Green says he has an obligation to due everything in his power to protect the citizens of this community. “And for any defense lawyer to suggest that I should just roll over and sit by and do nothing when these cases are thrown out I think is absurd.â€

Green says local law enforcement checks the accuracy of the machines on a weekly basis, and after every arrest.

Irondequoit town justice John Demarco says the judicial code of ethics prevents him from speaking publicly.

The defendants in the several Irondequoit cases were convicted of a lesser charge of driving while ability impaired

Source: WHEC News

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