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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