December 13, 2005

Irondequoit rulings reversed

Higher court says judge erred when he tossed DWI evidence.

Michael Zeigler
Staff writer

An Irondequoit judge erred when he threw out key evidence of illegal alcohol levels in misdemeanor drunken-driving cases, a higher-court judge said Monday.

Ruling in a civil lawsuit brought by the Monroe County District Attorney's Office, state Supreme Court Justice Kenneth R. Fisher said Irondequoit Town Justice John L. DeMarco should have allowed evidence of intoxication gathered by breath-testing devices. DeMarco said he wouldn't allow the test results into evidence in four DWI trials without testimony by technicians from Albany who could corroborate whether devices that generated the results were properly calibrated.

DeMarco cited a U.S. Supreme Court decision in an unrelated case to support his finding that prosecutors couldn't use written documents, instead of testimony, to vouch for the devices' accuracy. Use of the documents would violate defendants' rights to cross-examine witnesses brought by the prosecution, DeMarco ruled. But Fisher said the Supreme Court's decision doesn't require live testimony to attest to the veracity of the breath-testing devices. The written calibration records are sufficient, he said. Fisher's ruling doesn't change the outcome of four cases that had already been resolved before DeMarco, but will affect future cases, said Assistant District Attorney Michael Nolan, who represented the District Attorney's Office.

Fisher, however, said DeMarco had made "an intelligent, diligent and reasoned decision" and blasted opponents of DWI who said DeMarco was being too easy on drunken drivers.

"Judges must weather the buffeting critical winds created when public opinion is whipped up into a frenzy such as occurred in this case," Fisher wrote in his 21-page decision.

"We must, as Justice DeMarco admirably has done, do so without public response or retort. But I am not at this stage similarly constrained, and may observe that there is a world of difference between responsible criticism of a judge's discharge of his or her duty under the Constitution, and the reckless and irresponsible personal attack that was visited on Justice DeMarco following his honest effort to grapple with this difficult constitutional issue ... Justice DeMarco's decision deserves respect and admiration, not shameless public ridicule."

District Attorney Michael C. Green, who claimed DeMarco's ruling could endanger 1,800 misdemeanor drunken-driving cases annually in the county if other judges adopted it, said he was pleased by Fisher's decision.

"We felt strongly from the beginning that the blood-test documents were permissible and the procedures that the police were following and we were following were correct," he said.

Edmund C. Baird, a Rochester lawyer who represented DeMarco, said he would defer comment until he had spoken to DeMarco. Both sides, however, previously acknowledged that Fisher's decision might not be the final word because an appeal to higher courts is possible.

Brighton lawyer Edward L. Fiandach, who supported DeMarco's ruling in a friend-of-the-court brief filed on behalf of the National College for DUI Defense Inc., said he found Fisher's ruling to be well-reasoned.

But he said he disagreed with Fisher's finding that documents attesting to the testing devices' calibration were normal business records. The records, he said, are clearly generated only for prosecuting DWI cases and should be considered inadmissible hearsay.

"There's room for disagreement here," Fiandach said. "In terms of the documents, I think we're ignoring the elephant in the room, and that's that these documents are created solely for evidence."

Rochester DWI lawyer Todd J.W. Wisner said the issue could well go to the U.S. Supreme Court: "The right of confrontation is a procedural right, not evidentiary in nature. I believe the court (Fisher) narrowly construed what is testimonial evidence."

Fisher's ruling was the result of an unusual civil lawsuit brought against DeMarco by the District Attorney's Office.

In effect, prosecutors said they were compelled to sue DeMarco because of rules that limit their ability to appeal decisions made by judges on the admissibility of evidence.

The controversy began in December 2004 when DeMarco presided over a nonjury trial for a man who was charged with driving while intoxicated after he was stopped at a traffic checkpoint.

The defense argued that the prosecution shouldn't be allowed to submit documents attesting to the accuracy of breath-testing devices without offering them through a witness who could be questioned about the way the devices were calibrated.

The prosecution argued that it couldn't establish the reliability of the devices without calling a witness from the state Division of Criminal Justice Services, which oversees the devices' calibration. It also noted that previous rulings by appellate courts have upheld the use of the documents without accompanying testimony.

DeMarco ruled that submitting the documents alone without supporting testimony deprived the defendant of his right to challenge evidence. He dismissed the misdemeanor charge of driving while intoxicated, indicating that there was a lack of evidence. The judge, however, convicted the driver of driving while his ability was impaired.

The judge issued similar rulings in three cases in June, July and August. In two of the cases, the defendants were convicted, after nonjury trials, of the lesser charge of driving while their ability was impaired; in the third case, the defendant pleaded guilty to the lesser charge.

Since then, judges of Rochester City Court and Brighton Town Court have issued rulings contrary to DeMarco's decision.