Posted on 10/27/2005 4:30:37 AM PDT by Revelation 911
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.”
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.”
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.”
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.”
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.
Fact is when you go to traffic court the usual rules do not apply. Most times it is your word against the police officer, and you are guilty unless you can prove yourself innocent.
If you appeared in a regular court they would not take a policemans word without evidence.That doesnt apply in traffic court.
Mike has been doing a great job as our DA. He's right on the mark!!
Exactly, in Indiana, when you are arrested, you lose your license for 30 days, no exceptions. This is before you are convicted or even have a pre-trial conference. It's about time some of these laws are changed. How do you cross examine a breathalyzer?
Hoo rah! Right on.
'Traffic court' is not criminal court and the standards familiar to ignorant common-sensical Americans do not apply. There are various standards of proof and of innocence.
Only in criminal court is one presumed innocent until pronounced guilty beyond reasonable doubt. In civil court one may be required to prove innocence by the preponderance of the evidence and the 'word' of an officer of the court weighs much more heavily than a mere citizen's. In the court of public opinion 'you're damned 'cause I say so' is quite sufficient.
The standards of proof and evidence in science are so far beyond the ken of netizens as to be incomprehensible.
I just spent $90 for a seatbelt violation. The officers' first statement was was that he wasn't able to see directly to my lap to see if it was fastened. Guilty as charged anyway, next. This stopped being about safety a long time ago. Surcharges now exceed the fines. It's all a shakedown for King George (Pataki).
Ah, so judges can be sued eh?
Now, can prosecuters be sued?
Effectively the 'trooper' has become the judge and jury. He doesn't have to prove that you were doing 55mph in a 45 zone, he just has to say it. He doesn't have to prove that you couldn't recite the alphabet, he only has to say it.
I know that some patrol cars are equipped with video equipment now, and that has to make it a little less one sided, but it is still for the most part, the cop's word against yours.
Several years ago I was pulled over by a state trooper who insisted he had gotten me on radar at 85 in a 65. Completely false, as I was early for my appointment and was just taking my time getting there, actually under the speed limit at times. He stated he got me on radar from the east bound lanes (I was westbound) and it took him 20 miles to catch up with me. I asked him if he lost sight of the vehicle he clocked and he adimitted that he had. I asked if he had gotten the license of the vehicle and he said no. So I said 'did you just pick out the next dark blue vehicle you came upon to give this ticket to?' and he relented but wouldn't give it up and finally issued a 'warning' to save face. What crap. If I'm caught speeding, so be it, but I wasn't and this was a prime example of 'he said, she said' and if he really wanted to press it, I would have had to go to court with a lawyer to fight it.
"Green says local law enforcement checks the accuracy of the machines on a weekly basis, and after every arrest."
This is a conflict of interest. You can't have law enforcement officers checking the accuracy of machines AFTER an arrest has been made. Suppose they found the machine to be inaccurate? There is a strong incentive to lie and say they are accurate in order to justify the arrest.
Bottom line. Those machines need to be checked by a disinterested independent company which it's self is monitored for accuracy.
IMO a seat belt law is a violation of your Constitutional right to privacy,. But the Insurance companis have convinced the lawmakers that we will save so many lives. However, I havent seen my premiums go down since seat belt laws were enacted.Seat belts always bring forth the people in here who know what is best for others.
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