Judge Orders Release of City Breathalyzer Records

, New York Law Journal

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A judge has ordered the New York City Police Department to provide a defense attorney with breathalyzer maintenance and repair records going back five years.

Manhattan Supreme Court Justice Doris Ling-Cohan (See Profile) also awarded the Law Offices of Adam D. Perlmutter counsel fees in its lengthy battle to obtain the records under the Freedom of Information Law (FOIL).

Ling-Cohan rejected the city's argument that disclosing the records would interfere with law enforcement. She said the records can only show either that the machines used to determine if someone is intoxicated, and to what degree, are accurate and well-maintained, or not. If they are working properly, the judge said, there's no problem; if not, "the discovery of faulty or defective equipment can only be in the public interest."

Robert Freeman, executive director of the state Committee on Open Government, said Ling-Cohan "hit the nail on the head," and expressed concern that the city would want to withhold information that could potentially prevent or remedy a wrongful conviction.

"The police department failed to meet the burden of proving that disclosure would somehow be detrimental," Freeman said. "Even more important, the court emphasized that the discovery of defective equipment would be in the public interest in preventing improper prosecutions."

Law Offices of Adam Perlmutter v. New York City Police Department, 100220/2013, began when attorney Adam Perlmutter, whose firm handles civil and criminal litigation stemming from alleged drunken driving, submitted a FOIL request in August 2012 seeking calibration and maintenance records for all Intoxilyzer 5000EN machines owned or maintained by the NYPD since January 2008.

Records show there are 28 such machines which are used to determine if a suspected drunken driver is intoxicated and, depending on the level of intoxication, the seriousness of the charge.

The NYPD did not respond to Perlmutter's FOIL within the statutory five days and denied his request about three weeks later. It was also about two months late in responding to Perlmutter's administrative appeal, which upheld the denial.

After his FOIL was denied, Perlmutter commenced an Article 78 to force the police department to disclose the records.

The city submitted affidavits from prosecutors in all five boroughs, indicating that more than 4,000 cases citywide involve use of the Intoxilyzer machine.

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