New York Appellate Court Upholds DWI Conviction, Rejects Defendant's Confrontation Clause Defense — New York Criminal Attorney Blog

DUIs can have a serious impact on recipients, causing financial distress and jeopardizing their ability to operate a motor vehicle. Even if you have been charged with a DUI, there may be a number of defenses available to you to alleviate the charge and to ensure that you are not punished unfairly. At Tilem & Associates, our seasoned New York City DUI attorneys have substantial experience analyzing DUI claims and helping individuals fight an unfair charge.

The following recent appellate opinion illustrates why consulting with a criminal defense lawyer as soon as possible can make a huge difference in protecting your rights. The defendant was arrested for driving while under the influence in addition to a number of other traffic-related violations. The arresting officer transported him to the nearby station at which point two other officers observed the breath-testing procedure. Both officers were experienced administrators of the test and familiar with using the device. One of the observing officers administered the test, which involves a 13-step procedure, and the other officer took a video recording of the test.

The defendant was unable to perform a proper breath sample on his first two tries, resulting in two errors. The machine had to be reset each time. On the third attempt, the machine printed out a test result showing that the defendant’s BAC was 0.25.

Before the defendant’s trial, the officer who administered the test retired and moved to another state. The officer who obtained the video footage, therefore, was called to testify at trial. The testifying officer indicated that he believed the defendant was under the influence. The 13-step procedure checklist that the retiring officer completed was not offered into evidence. The jury convicted the defendant of driving while intoxicated. The conviction was challenged, and the reviewing court reversed finding that the defendant’s Confrontation Clause rights were violated because the retired officer did not testify and because the other officer could not testify regarding the machine’s performance and results due to his lack of personal observation during the actual test.

The prosecution appealed. On review, the court first noted that the Confrontation Clause makes the testimony of a witness against a criminal defendant inadmissible unless the witness offering the testimony appears at trial, or unless the defendant had a prior opportunity to cross-examine the witness. Applying prior case law interpreting the Confrontation Clause, the appellate court concluded that the defendant’s rights were not violated. The testifying officer was present during the entire breathalyzer test and testified that he had completed the necessary training to understand and operate the machine. He also testified that because of his training and experience, he could identify whether the machine was working properly. The defendant was also present for the requisite period of time and had sufficient opportunities to observe the defendant.

If you are facing a DWI charge, you do not need to navigate the criminal legal process alone. At Tilem & Associates, our seasoned DWI/DUI criminal defense lawyers know just how daunting and stressful this may be for you and your family. We will work diligently and carefully to comb through your case and to ensure that you assert each and every defense that may be available to you. We offer a free consultation to help you learn more about your legal rights and options. Call us now at 877-377-8666 or contact us online to get started.

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