| Many years ago I was an avid student of Karate. I | | | | I obtained and reviewed discovery) where the |
| had studied different styles until I happened upon | | | | machines were not calibrated ie. properly maintained, |
| American Kenpo. I thought it was a perfect blend of | | | | for over 6 months. I knew this because I went |
| offensive and defensive moves because it embraced | | | | through the Certificate of Calibration records for |
| a pragmatic philosophy. It was Karate for the little | | | | these machines. |
| guy. It was Karate in a phonebooth. You were up | | | | It seems that the State Police feel that their |
| close and personal with not a lot of the high and hard | | | | machines do not require regular maintenance even |
| kicks of Tae Kwon Do. | | | | though New York State has a "written" 6 month rule |
| Kenpo said, "do not bring your foot to their face, | | | | on Police car speedometers, and an "unwritten" rule |
| instead bring their face down to your foot." Stomping | | | | that machines used to gather evidence, whether a |
| on feet, toes, and shins naturally bent and brought | | | | speed laser gun or a breath machine be checked at |
| bigger (taller) people down. Then they were nicely | | | | least every six months. |
| positioned to hit, punch, and strike. In other words | | | | This 6 month rule is not written in stone (or |
| knock-em off at the knees. Aiming low (hitting below | | | | specifically in the DWI statutes) but case law |
| the belt) was easy for me at 5'6". It was also very | | | | supports it. |
| smart. | | | | In New York State the term "calibration" means a |
| Nowadays, I bring the Karate philosophy to my DWI | | | | machine that has been: (1) inspected, (2)calibrated, |
| defense practice. The prosecution must | | | | and (3) repaired (if necessary) by specially trained |
| present foundation evidence before they can admit | | | | technicians at specific certified NYS facilities. |
| the results of their breath machine. Without a proper | | | | In People v. Todd, 79 Misc. 2d 630, 360 N.Y.S. 2d |
| foundation they can not use the results that come | | | | 754, 759 (Delaware Co. Ct. 1974) a breath test |
| out of the machine. They must present evidence | | | | machine had not been calibrated for over a six month |
| that the machine was in "proper working order" at | | | | time period, and was left on (running) all the time. |
| the time of the test. See People v. Freeland, 68 | | | | The County Court disallowed the use of the breath |
| N.Y.2d 699, 700, 506 N.Y.S.2d 306, 307 (1986). | | | | test result. This case was upheld by the Court of |
| Without this foundation evidence the BAC results are | | | | Appeals which stated that it is upon the District |
| inadmissible. | | | | Attorney to show (demonstrate) that the breath |
| Over the last month I have had multiple cases (after | | | | machine is in proper working order. |