District Attorneys have relied on certified records to introduce certain lab reports in DWI, DWAI, DWAI drugs and other drug cases instead of having the actual lab analyst testify.  This seems to be changing with the most recent US Supreme Court case as outlined below.

Lab Reports at Trial in DWI, DWAI, DWAI Drug  and Drug Cases

At trial for an offense involving any Laboratory Report (usually a drug, DWI or gun charge case) the confrontation clause of the sixth amendment requires a criminal accused to be confronted with the testimony of lab analysts.

The United States Supreme Court in Melendez-Diaz v Massachusetts, 129 S Ct 2527, held that a lab analyst’s certificate is testimonial and can not be admitted unless the analyst was unavailable to testify at trial and the accused had a prior opportunity to cross-examine the analyst.

DWI Blood/Breath Test Lab Reports

In Nassau County after a DWI trial the court sustained the defendant’s objection to the admission of the calibration log of the breathalyzer machine used to test his blood alcohol level as a certified business record and required the prosecution to present live testimony from the lab technicians who preformed the calibration.

The Best Criminal Defense

The best criminal defense is one that holds the government to their burden on each and every element of the crime.  This is especially true of DWI, DWAI, DWAI Drug and other Controlled Substance cases where a lab report is necessary.  In Westchester, Rockland, Bronx, Orange, Putnam and Dutchess counties the government will have their own report usually from the County Department of Lab and Research.  These lab reports must be attacked for their accuracy.  This additional requirement that the government bring the actual analyst into court is helpful to the experienced criminal defense attorney and the accused since it opens the door to in depth cross examination.

White Plains City Court Criminal Defense 

In the City Court of White Plains there has been an increase use by the department of labs and research in Westchester County of “preliminary” lab reports to support DWI, DWAI, DWAI Drug and other drug charges.  These lab reports are the very reports that need to be scrutinized for their accuracy and demanding the actual lab analyst to testify will help any criminal defense.

Southeast DWI Criminal Defense

Likewise, for any criminal defense for a DWI, DWAI, DWAI drug charge in busy DWI courts such as the Town of Southeast in Putnam County (Brewster).  These lab reports must be scrutinized as they usually are the prosecutions strongest form of evidence.

In defending those criminal charges, criminal trial attorney Riebling focused on demonstrating that his client did not engage in any actions which were criminal under the law.  All New York crimes, including felonies and misdemeanors have specific elements which need to be proven beyond a reasonable doubt.

The crime of Menacing in the Third Degree states:

“A person is guilty of Menacing in the Third Degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury.” (PL § 120.15.)

The single most important factor in defending his client in the White Plains, New York Court was the lack of any “physical menace.”  In order to satisfy the physical menace element of this crime, it must be alleged that the defendant committed a physical act which, in and of itself, placed another person in fear of imminent injury.Words or threats are not enough to satisfy the requirement.A defendant may not be convicted of Menacing without evidence of this important element.

At the time of trial, the case was successfully resolved in favor of Attorney Riebling’s client.

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If you or someone you know has been arrested for a crime, misdemeanor or felony and needs a criminal defense lawyer in New York, please contact Stephen Riebling or any member of the firm for a free consultation. The firm’s criminal defense lawyers regularly appear in the courts of Westchester, Bronx, Rockland, Putman, Dutchess and Orange Counties.

In order for urine (blood) test to be admitted at trial, prosecutors must present testimony from the lab technicians who preformed the tests. 

In People v Levy, 2008 NY Slip Op 51878(U), the prosecution presented testimony from the police officers who handled the sample before it was mailed to an out of state lab for testing, the lab employee who received the sample and placed a portion of it into test tubes, and a supervisor from the lab testified.  The lab supervisor testified about the normal procedures the lab follows when it receives and tests a urine sample, and he determined, after reviewing the lab’s 300 page litigation package that tests were preformed on the defendant’s sample. 

The court concluded that the results of the DWI urine tests were NOT admissible.

The prosecution failed to present testimony regarding the chain of custody for the test tube samples.  A witness was needed with personal knowledge about the tests preformed.  The Court also refused to admit the lab’s litigation package under the business exception rule.

This summer I successfully defended a DWI blood reading of .24 in White Plains.  I was able to have the blood results suppressed on a similar basis as above. 

In my case the prosecution failed to present evidence that a physician or someone under a physician’s supervision drew the blood. 

The White Plains Court also refused to admit evidence of the blood sample results under the business exception rule in that ruling that live testimony is needed.  The result was a not guilty jury verdict.

Andrew Proto