Freedom of Information Act lawsuits

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A criminal defense attorney in Manhattan has filed a Freedom of Information Act lawsuit against the NYPD seeking five years’ worth of inspection, maintenance and repair records for each and every Breathalyzer device the police has. He has reason to believe that, at least in some cases, the NYPD has introduced evidence based on breath-testing devices that were not properly calibrated, poorly maintained or even broken.
In his petition before the Manhattan Supreme Court, he says that obtaining the full set of maintenance records on one NYPD Breathalyzer resulted in his client’s acquittal. He was able to show the jury that the machine used on his client had been reported broken but put back into service with no repairs.
That experience led the attorney to seek the maintenance and repair records in other cases. Judges are often willing to order the police to provide DUI defense lawyers in Marysville with these records, but the information provided was so incomplete that it couldn’t be used. Typically, the records only covered a limited time period — not the five years he is asking for.
Next, he filed a FOIA request with the NYPD itself. The department turned him down flat. Even though the records do not correspond to any particular case, the NYPD contended that disclosing them would “interfere with law enforcement investigations or judicial proceedings.” Hence the appeal.
Refusing to disclose the Breathalyzer records would “interfere with the ordinary course of court-supervised discovery” and deprive people of a right to a fair trial,” the attorney shot back.
In New York, the stakes are high for people arrested for DWI in Washington. At the very least, people are typically forced to spend a night in jail before they can even be arraigned. Unless they take immediate action, their driver’s licenses are suspended based on the arrest alone — not the conviction.
For those found with a breath test reading of .08 or higher, prosecutors in Brooklyn and Manhattan won’t even consider a plea bargain, according to the lawyer. That means an inaccurate Breathalyzer reading could result in more serious charges and greater penalties than the defendant deserves.
The reliability of evidence from Breathalyzers, Intoxilyzers, Datamasters and other breath testing machines is under fire across the nation. While the accuracy of the machines does vary, the equipment must be properly maintained and calibrated, and officers must be properly trained in its use for the machines to be worth trusting. Both criminal defendants and the citizens of New York have the right to know whether the NYPD is getting it right.

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