Knock-em Off at the Knees

Many years ago I was an avid student of Karate. I had studied different styles until I happened upon American Kenpo. I thought it was a perfect blend of offensive and defensive moves because it embraced a pragmatic philosophy. It was Karate for the little guy. It was Karate in a phonebooth. You were up close and personal with not a lot of the high and hard kicks of Tae Kwon Do. Kenpo said do not bring your foot to their face bring their face down to your foot. Stomping on feet, toes, and shins naturally bent and brought bigger (taller) people down. Then they were nicely positioned to hit, punch, and strike. In other words knock-em off at the knees. Aiming low (hitting below the belt) was easy for me at 5'6". It was also very smart.

Nowadays I bring the Karate philosophy to my DWI defense practice. The prosecution must present foundation evidence before they can admit the results of their breath machine. They must present evidence that the machine was in "proper working order" at the time of the test. See People v. Freeland, 68 N.Y.2d 699, 700, 506 N.Y.S.2d 306, 307 (1986). Without this foundation evidence the BAC results are inadmissible.

Over the last month I have had multiple cases (after I obtained discovery) where the machines were not calibrated ie. properly maintained, for over 6 months. I knew this because I went through the Certificate of Calibration records for these machines. New York State has a "written" 6 month rule on Police car speedometers, and an unwritten rule that machines used to gather evidence, whether a speed laser gun or a breath machine be checked at least every six months.

This 6 month rule is not written in stone (or specifically in the DWI statutes) but case law supports it.

In New York State the term "calibration" means a machine that has been: (1) inspected,
(2)calibrated, and (3) repaired (if necessary) by specially trained technicians at specific NYS facilities.

In People v. Todd, 79 Misc. 2d 630, 360 N.Y.S. 2d 754, 759 (Delaware Co. Ct. 1974) a breath test machine had not been calibrated for over a six month time period, and was left on (running) all the time. The County Court disallowed the use of the breath test result. This case was upheld by the Court of Appeals which stated that it is upon the District Attorney to show (demonstrate) that the breath machine is in proper working order.

But as I have stated in prior blogs, even though many Courts will see Todd as creating this six month rule some Judges may still decide not to follow it.