District Attorney’s Office Can Proceed With DWI Lawsuit

October 25, 2005

A State Supreme Court Judge ruled that the District Attorney’s Office could properly bring a declaratory judgment action against Irondequoit Town Justice John DeMarco to challenge his rulings in DWI cases. In four separate cases, DeMarco has ruled that the documents used to establish the accuracy and reliability of Breathalyzer instruments are inadmissible under last year’s United States Supreme Court decision in Crawford v. Washington. The documents are essential to prosecuting per se DWI cases.

Because the Criminal Procedure Law does not give the prosecution the right to appeal such decisions, the office was forced to take the unusual step of bringing a civil declaratory judgment action against Judge DeMarco to seek review. Assistant District Attorney Michael Nolan filed the case, which is only the second in the history of the Monroe County District Attorney’s Office. DeMarco’s attorneys moved to dismiss, arguing that such a procedure was improper, but State Supreme Court Justice Kenneth Fisher agreed with Nolan’s argument that the District Attorney’s Office acted within its rights in bringing the action.

The case will now go forward on the substantive issue of whether Justice DeMarco was correct in ruling that the documents are inadmissible under Crawford; a final decision in the case should be made in a few weeks.