After nearly a year of stalling, the New York County District Attorney’s Office has finally asked the NYPD what New York law has required for decades: Has the breath machine in a specific case ever been repaired? However, when the answer is “Yes”, the Manhattan DA’s Office is still trying to avoid fulfilling its legal obligations to provide constitutionally mandated evidence to an accused.
New York’s long out of date discovery statute, Criminal Procedure Law § 240.20(l)(k) has imposed the obligation to turn over repair records of breath machines since the 1989. Specifically, the law provides that in DWI prosecutions, upon demand, the accused is entitled to anything required under the U.S. Constitution and N.Y. State law, “including . . . the most recent . . . record of repair of the machine or instrument . . ..”
Despite the fact that this requirement, the New York County District Attorney’s Office, (and the other four New York City DA’s we suspect) have never fulfilled this obligation. A recent decision has started a gradual change.
In People v. White, 2014 NY Slip Op 24217, at *8 (Crim. Ct., N.Y. County June 30, 2014), the Hon. Melissa Crane held that the prosecutors have a duty to discover any history of repair:
[T]he People have a continuing Brady obligation to conduct an actual investigation into whether any information exists indicating that the chemical test device was not operating properly, and to disclose any of this information to the defense . . . This duty includes review of the most recent maintenance records to see if they contain repair information.
Following this ruling, the New York County DA’s office admitted in three of our cases, the machines have gone out of service. In one case, the machine malfunctioned just one month after the test. Without Judge Crane’s order, the New York County DA’s office would have kept it hidden until after the case ended, possibly forever.
But after these mandatory revelations, the smoke screen went back up. We were told that the machines had malfunctioned and been sent back for repairs to CMI, the Kentucky based manufacturer, but incredibly no “record of repair” exists. Essentially, the NY County District Attorney has retreated to the untenable position that these machines regularly break, and get sent to the manufacturer for repairs, but no paperwork is kept– no bill, no work order, no written description of why the machine was being sent, no mailing slip, not even a note from CMI saying, “Dear Cy, Sorry our machines are such junk that you have to keep sending them back. Love, CMI.”
This information is invaluable to DWI cases. Recently, a Nassau County judge ruled that an accused could have her guilty plea withdrawn because not disclosing repair records at the time of the plea was violation of her constitutional rights. See People v. Kull, 2014 NY Slip. Op. 51176(U) (Dist. Ct., Nassau County July 24, 2014). If an accused can withdraw a plea for not having these records, certainly an attorney cannot recommend that client take a plea unless and until that information has been made available. Since the mid-1980s, New York District Attorneys have prosecuted roughly 300,000 DWI cases. We may never know how many of those cases involved malfunctioning machines, but one thing is certain. We plan to get to the bottom of this problem and expose the NYPD and any district attorney who tries to hide the truth about these machines.
Image courtesy of Flickr user gfairchild
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