NEW YORK COUNTY CLERK'S INDEX NO.1 00220/2013

NEW YORK SUPREME COURTAPPELLATE DIVISION: FIRST DEPARTMENT

In the Matter of

THE LAW OFFICES OF ADAM D. PERLMUTTER, P.C., for aJudgment Pursuant to Article 78 of the Civil Practice Law andRules

Petitioner-Respondent,

- against-

NEW YORK CITY POLICE DEPARTMENT, and RAYMONDKELLY, in his official capacity as Commissioner of the New YorkCity Police Department,

Respondents-Appellants.

RECORD ON APPEAL

ZACHARY W. CARTER,Corporation Counsel of the

City of New Yark,Attorney for Respondents-Appellants,100 Church Street,New York, New York 10007.(212) 356-2500@law.nyc.gov

LAW OFFICE OF ADAM D. PERLMUTTER, P.C.,Daniel A. McGuinness, Esq.,Attorney for Petitioner-Respondent,260 Madison Avenue, Suite 1800,New York, New York 10016.(212) 679-1990

Reproduced on Recycled Paper

TABLE OF CONTENTS

Pre-Argument Statement in Lieu ofStatement Pursuant to CPLR 5531 1

Respondents' Notice of Appeal, dated October 29,2013 5

Order Appealed from and Memorandum Decisionof the Honorable Doris Ling-Cohan,Dated October 17,2013 and Entered October 23,2013 7

Notice of Verified Petition, Dated January 31,2013 20

Verified Petition, Sworn to January 29,2013,with Annexed Exhibits 23

Exhibit A - NYPD Highway Patrol Procedural Guide 39

Exhibit B - Trial Transcript in People v. Lopresti,Dated May 26,2011 143

Exhibit C - Article, Dated March 2006,Titled "Demystifying The Intoxilyzer 5000by Mary Catherine McMurray 244

Exhibit D - Diagnostic Test Results 269

Exhibit E- Calibration check printout sheet 271

Exhibit F - NYPD Field Unit Inspection Report 273

Exhibit G - NYPD Field Unit Inspection Report 275

Exhibit H - NYPD Calibration Report,Dated December 3, 2011 277

Exhibit I - Police Department Certification ofRecords by Gami1 Hanna 279

Exhibit J - Intoxilyzer 5000 Operator's Manual 281

Exhibit K- Printout reflecting the readings ofthe calibration checks 314

11

Exhibit L - Inhibited RFI printout.. 316

Exhibit M - Interferent detected andsubtracted printouts 318

Exhibit N- Invalid Sample Printout 321

Exhibit 0 - Invalid Test Printout 323

Exhibit P - Insufficient Sample Printout 325

Exhibit Q- NYPD Maintenance Log for eachIntoxilyzer 5000EN machineOperated in the City 327

Exhibit R - Excerpt of Transcript, Dated July 23,2012,in People v. Alvarado 330

Exhibit S - Examples from the Alcohol Testing Program,Florida Department ofLaw Enforcement Website 342

Exhibit T - Letter, Dated August 30, 2012,from Daniel A. McGuinness to RecordsAccess Officer NYC Police Department,with Supporting Documents 347

Exhibit U - Affidavit of Service, Sworn to August 31, 2012 371

Exhibit V - Letter, Dated September 20, 2012, from RichardMantellino, to NYPD FOIL Unit. 373

Exhibit W - Letter, Dated September 25,2012,from Daniel A. McGuninnessto Jonathan David 376

Exhibit X - USPS return receipt card and website tracking information ....... 379

Exhibit Y - Letter, Dated December 3,2012, fromJonathan David to Daniel A. McGuinness 382

Exhibit Z - Letter, Dated October 15, 1980,from Robert J. Freeman to Susan Marie Tatro 384

III

Amended Verified Answer,Sworn to May 2,2013, with Annexed Exhibits 389

Exhibit A - Letter, Dated August 30, 2012,from Daniel A. McGuinness to RecordsAccess Officer NYC Police Department .411(reproduced supra pp. 347-350)

Exhibit B - Letter, Dated September 20, 2012, from RichardMantellino, to NYPD FOIL Unit.. .412(reproduced supra pp. 373-375)

Exhibit C - Letter, Dated September 25,2012,from Daniel A. McGuninnessto Jonathan David .413

Exhibit D - Letter, Dated December 3,2012, fromJonathan David to Daniel A. McGuinness .416(reproduced supra pp. 382-383)

Exhibit E- Sample of Calibration check printout.. .417

Exhibit F - Sample ofIntemal Diagnostic check printout .419

Exhibit G - Sample of Police Laboratory Field Unit Inspection Report ....... .421

Exhibit H - Sample of Diagnostic check printout. .423

Exhibit I - Sample of Calibration Report .425

Exhibit J - Sample of an Insufficient Sample Test printout .427

Exhibit K - RFI test printout.. .429

Exhibit L - Police Laboratory Calibration Report .431

Exhibit M - Invalid Sample printouts .433

Exhibit N - "Interferent Detected" printout .435

Exhibit 0 - Invalid Test printout .437

Exhibit P - Affinnation of Joseph A. McConnack, Dated May 2, 2013 .439

IV

Page

Exhibit Q - Affirmation of Jill Hoexter, Dated May 2, 2013 .445

Exhibit R - Affirmation of Adam Silberlight, Dated May 2, 2013 .448

Exhibit S- Affirmation of Karen Rankin, Dated May 2, 2013 .451

Exhibit T- Affirmation of Craig Esswein, Dated May 2, 2013 .454

Statement ofNo Other Opinion 457

Certification Pursuant to CPLR 2105 458

PRE-ARGUMENT STATEMENT IN LIEU OFSTATEMENT PURSUANT TO CPLR 5531

(pp. 1-4)

REPRODUCED FOLLOWING

2APPELLATE DIVISION OF THE SUPREME COURTFIRST JUDICIAL DEPARTMENT

~-~---------~---------------------------------------------------------x

In the Matter of

THE LAW OFFICES OFADAM D. PERLMUTTER, P.c.,

Petitioner-Appellee;

For a Judgment Pursuant to Article 78of the Civil Practice Law and Rules

-against-

NEW YORK CITY POLICE DEPARTMENT,and RAYMOND KELLY, in his official capacity asCommissioner of the New York City Police Department,

Respondents-Appellants.

-------------------------------------~------------~-------~-----------x

Index No. 100220/2013

PRE-ARGUMENTSTATEMENT

PLEASE TAKE NOTICE, that the Responden'ts-AppellantS, for their pre-

argument statement, allege as follows:

1. ' The full names of the original parties, and the names, addresses and

telephone numbers of counsel for the parties, are as set forth below:

Petitioner-Respondent:

Attorneys forPetitioner-Respondent:

Respondents-Appellants:

THE LAW OFFICES OF THE LAW OFFICES OF,ADAM D. PERLMUTTER, P.C.

Law Offices of Adam D. Perlmutter, P.C.260 Madison Avenue, Suite 1800New York, NY 10016(212) 679-19.90

NEW YORK CITY POLICE DEPARTMENT andRAYMOND KELLY, in his official capacity asCommissioner of the New York City Police Pepartment

Attorneys forRespondent-Appellant:

3

Michael A. CardozoCorporation Counsel of the City of New York100 Church StreetNew York, New York 10007(212) 356-0800

2. In this proceeding commenced under Article 78 of the CPLR, Petitioner-

Respondent challenged the detennination of the Respondents-Appellants to deny Petitioner-

Appellant access to documents requested pursuant to the New York Freedom of Infonnation

Law, N.Y. Pub. Off. Law ~4, et seq.

3. Appeal is taken from that portion of the Decision, Order and Judgment of

Justice Doris Ling-Cohan dated October 17, 2013 and entered in the office of the Clerk of New

York County on October 23,2013, pursuant to which Justice Ling-Cohan found that the subject

documents were not exempt (a) pursuant to N.Y. Public Officers Law 87(2)(e)(i) as law

enforcement records, the disclosure of which would interfere ~th a judicial proceeding, or (b)

pursuant to N.Y. Public Officers Law 87(2)(a), as documents which are specifically exempted

from disclosure by state statute, namely N.Y. Criminal Procedure Law 240.20(1)(k). Appeal

also is taken from that portion of the Decision, Order and Judgment which awarded Petitioner-

Appellant attorneys' fees and costs.

4. The grounds for appeal are that the Court erred in finding that disclosure

of records perta,ining to the calibration and maintenarice of Intoxilyzer 5000EN machines owned(

or maintained by the New York City Police Department NYFD from January 2008 until August

2012 would not expand the scope of pennissible discovery in thousands of pending criminal

DUIIDWI prosecutions throughout New York City in providing broader and earlier access to

records under the Freedom of Infonnation Law than otherwise pennitted to criminal defendants

pursuant to N.Y. Criminal Procedure Law 240.20(l)(k) and, thus, (i) would not interfere with

2

4judicial proceedings by usurping the authority of criminal court judges .to manage pre-trial

discovery in DUIIDWI prosecutions brought before them, and on that basis was not exempt

pursuant to N.Y. Public Officers Law 87(2)(e)(i), and (ii) would not require disclosure of

records that are not discoverable under N.Y. Criminal Procedure Law 240.20(1)(k), and on that

basis was not exempt pursuant to N.Y. Public Officers Law 87(2)(a). The Court further erred in

finding that Petitioner-Appellant was entitled to an award of attorneys' fees and costs pursuant to

N.Y. Public Offi~ers Law 89(4)(c), although Petitioner-Appellant is proceeding pro se.

Dated: New York, New YorkOctober 28, 2013

MICHAEL A. CARDOZOCorporation Counsel of the City ofNew YorkAttorney for Respondents-Appellants100 Church StreetNew York, New York 10007(212) 356.2~OO 1./ ~By: ~'f'

Leonard KoernerChief, Appeals Division

J

5RESPONDENTS' NOTICE OF APPEAL, DATED OCTOBER 29,2013(pp.5-6)

REPRODUCED FOLLOWING

Petitioner,

For a judgment Pursuant to Article 78 of the CivilPractice Law and Rules,

-against-

~,UPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK

---------~-------------------------------------------------------------)(In the Matter of

THE LAW OFFICES OF ADAM D. PERLMUTTER, P.C.,

6

NOTICE OF APFEAL rIndex No.IO0220IfJ~DLf)

_-'0/.;',',

~~~,~t\'i .",~~:gr:~Ir~~~~~;o~~~~::i~:'and ~t'\ '/.~~ .' ~,

Commissioner of the New York City Police ~:::::~. .~ . ' '.'------------------------------------------------------------)( ;..,.

PLEASE TAKE NOTICE that respondents appeal to the Appellate Divi~ionof

the Supreme Court, First Department, from the decision order and jJ.idgment (one paper) of the

Hon. Doris Ling-Cohan, herein dated October 17, 2013 and entered in the office of the Clerk of

New York County on or about October 23,2013. This appeal is taken from each and every part

of said decision order and judgment (one paper) as well as from the whole thereof.

Dated: New York, New YorkOctober 29,2013

, By:

MICHAEL A. CARDOZOCorporation CounselAttorney for Respondents,100 Church StreetNew York, New York 10007.(212) 356-2500

LEONARD KOERNERChief, Appeals Division

TO: LAW OFFICES OF ADAM D. PERLMUITER, P.C.,AttoI1;leys for Petitioner,260 Madison Avenue, Suite 1800New York, New York 10016(212) 679-1990

CLERKCounty ofNew York

7ORDER APPEALED FROM AND MEMORANDUM DECISIONOF THE HONORABLE DORIS LING-COHAN,

DATED OCTOBER 17, 2013 AND ENTERED OCTOBER 23,2013(pp.7-19)

REPRODUCED FOLLOWING

8SUPREME COURT OF THE STATE OF NEW YORKNEW YORK COUNTY

PRESENT: . DORIS t'NG..cOHANJ;S:.C.Justice

PART 3'

~~ oq;-'~.s .F 4JtI#M "Do R,.,.J",II!k"i Pc.-v

New y.,4: r:,,lct A I Q. ~,cf P;i-! ~MonON DATE _

MonON SEQ. NO. _

The f.,,,,"", pa..... "umb.... 1 toL .w.re rea' ou tbIs mot"," toIfor ~ i:4 71JNotice of Motion/Order to Show Cause~ Affidavits - exhibits (..,.. I\lle~ I NO(al'_-v-G-=1~__Answering Affidavits - ExhlbW' ~ (+- ...~....)~ . . INo(s)..3Replying Affidavits _~ ) _ . I No(s). ----:;...-- _/~~,Mt>r~ M- -s167n - '2.' ~Upon the foregoing papers, It Is ordered that this metlen 18' ~"'t:-.4. r-dl;oro~j

/ s c;n;.Y?ftt:f' /17 ~r~~ V~~~/~,nrJ-r-r-'t~~ .~~

UNG..coHANJ:9.C~ J.S.C.

w(Jj::::(I)::J..,oI-@0::0::w1.1,;w0:: ..~:..J Z::l 01.1,; en

t;~w 0::l:ieJw Z

o::~~ow:f(1)0~ L&.ZW0::1:_ t-bO::~~

Dated: /0-/"9-/l3

o NONFINAL DISPOSITIONo GRANTED IN PART 0 OTHER

D SUBMIT ORDERD FIDUCIARY APPOINTMENT 0 REFERENCE

1. CHECK ONE: ~ CASE DISPOSED2. C_HECK AS APPROPRLI\TE: MOTION IS: 0 GRANTED 0 DENIED3. CHECK IF APPROPRIATE: 0 SEITlE ORDER

000 NOT POST

9SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK: PART 36

In the Matter ofTHE LA W OFFICES OF ADAM D.PERLMUTTER, P.C.,

Petitioner,

.."

::J:.r-..

oUl

DECISION, ORDER &JUDGMENT

INDEX NUMBER 100220/2013Motion Sequence 001

Respondents.

-against-

For a Judgment Pursuant to Article 78 of theCivil Practice Law and Rules,

NEW YORK CITY POLICE DEPARTMENT, andRAYMOND KELLY, in his official capacity asCommissioner of the New York City PoliceDepartment,

DORIS LING-COHAN, J.:

Petitioner, the Law Offices of Adam D. Perlmutter, petitions this court for a judgment,

pursuant to CPLR Article 78, compeUing respondents to produce documents requested in

petitioner's Freedom of Information Law (FOIL) request, dated August 30, 20 I2.

Factual Background

Petitioner is a New York City-based law firm that, among other matters, handles criminal

and civil litigation concerning impaired driving of a motor vehicle and driving under the

influence (DUI). Respondent New York City Police Department (NYPD) uses breathalyzer

machines to determine a subject's blood alcohol level. A subject may not voluntarily substitute a

blood or urine sample. A blood or urine test may be administered at NYPD's discretion. See

Petition, exhibit A, Highway District Intoxilyzer SOOOEN LD.T.U. Procedure Guide at 9.

Statutory penalties in New York City are based on the breath test readings. See Vehicle and

Traffic Law 1192 and 1195.

According to the petition, NYPD maintains 28 Intoxilyzer SOOOEN model machines

(lntoxilyzer) in six police precincts around the city, and at NYPD's laboratory. Petition, ~~ 15-

I ~

10

.. 16. A subject arrested for DUI is taken to one of these locations for testing. Id. at ~18. TheIntoxilyzer uses infrared spectrophotometry, where the alcohol content of a breath sample is

measured by the passage of infrared light through it. ld. at'19.

On August 30, 2012, petitioner, pursuant to FOIL, requested "copies of all calibration and

maintenance records for all Intoxilyzer 5000EN machines owned or maintained by the NYPD for

the last five years (beginning January 2008 until the present)," Petition, exhibit T. On September

20,2012, defendants denied the FOIL request as disclosure "would interfere with law

enforcement investigations or judicial proceedings", citing New York's Public Officers Law

("POL") 87(2)(e)(i). ld., Exhibit V. Petitioner appealed, in a letter dated September 25, 2012.

ld., exhibit W. Petitioner's appeal was denied on December 3, 2012. ld., Exhibit Y. The

parties took no further action until the filing of the instant petition on January 30, 2013.

Legal Standards

In this Article 78 proceeding, the question is raised as to "whether a detennination was

made in violation of lawful pr~cedure, was affected by an error of law or was arbitrary and

capricious or an abuse ofdiscretion, including abuse of discretion as to the measure or mode of

penalty or discipline imposed." CPLR 7803 (3). "Judicial review of a discretionary

administrative determination is limited to deciding whether the agency's actions were arbitrary

and capricious. The agency's determination must be upheld if the record shows a rational basis

for it, even where the court might have reached a contrary result!' Matter ofKaplan v Bratton,249 AD2d 199,201 (1st Dept 1998) (citation omitted); see also Matter ofChinese Staff&Workers' Assn. v Burden, 88 AD3d 425,.429 (Ist Dept 2011) (''It is not the role of the court to

weigh the desirability of the proposed action or to choose among alternatives, resolve

disagreements among experts, or to substitute its judgment for that of the agency"), affd 19 NY3d922 (2012).

2

..

11

FOIL, New York's Public Officers Law 84 et seq., provides for "access to the records

of government." It covers

"any infonnation kept, held, filed, produced or reproduced by, with or for an agency orthe state legislature, in any physical fonn whatsoever including, but not limited to,reports, statements, examinations, memoranda, opinions, folders, files, books, manuals lpamphlets, fonns, papers, designs, drawings, maps, photos, letters, microfJ.lms, computertapes or discs, rules, regulations or codes."

Public Officers Law 86 (4).

Certain limits are placed on disclosure, such as shielding collective bargaining

negotiations, confidential law enforcement investigations, and trade secrets. See e.g. Public

Officers Law 87 (2) (c), (2) (d) and (2) (e) (iii). Public Officers Law 87(2), cited to by

respondent in its denial letter [Petition, Exh. V], specifically states in pertinent part, as follows:

[e]ach agency shall, in accordance with its published rules, make available forpublic inspection and copying all records, except that such agency may denyaccess to records or portions thereof that:

(e) are compiled for law enforcement purposes and which, ifdisclosed, would:

(i) interfere with law enforcement investigations or judicial proceedings.

The public agency has the burden ofproving that the requested record falls within the

listed exceptions. Public Officers Law 89 (4) (b).' The public agency is required to either

produce the requested record, deny the request in Writing or "furnish a written acknowledgement

of the receipt of such request and a statement of the approximate date, which shall be reasonable

under the circumstances of the request, when such request will be granted or denied," within five

days of receipt of the request. Public Officers Law 89 (3) (a).

A denial ofa record request may be appealed within thirty days, and the public agency

"shall within ten business days of the receipt of such appeal fully explain in writing to the person

requesting the record the reasons for further denial, or provide access to the record sought."

Public Officers Law 89 (4) (a).

3

12

Discussion

Petitioner contends that respondents' responses to his FOIL request and his appeal of its

denial were untimely under law. Public Officers Law 89 (3) (a) requires the public agency to

reply within five days, no matter whether it is granting, denying or furnishing a written

acknowledgement of receipt and a statement of the approximate date when a final determination

will be made. Here, respondents answered petitioner's August 30, 2013 request on September

20,2012,21 days from the request. The appeal was filed on September 25,2012. The appeal

was denied on December 2, 2012,69 days later. Each time span was outside of the statutory

guidelines.

Respondents do not displ.lte the length oftime they took to respond to petitioner's FOIL

request and his appeal of its denial. Rather, they assert that their "denial of Petitioner's FOIL

request was lawful and proper in every respect and m~dated by law." Amended Verified

Answer (Answer), , 108. This statement is incorrect in that the initial denial and the denial of

the appeal were late under ~atute, and the responses made no effort to explain, or even

acknowledge, respondents' conduct in this regard. However, a delay in responding to a FOIL

request or an appeal of its denial is generally treated the same as a denial of the. request or the

appeal. Matter ofNew York Times Co. v CitypfN.Y. Police Dept., 103 AD3d 405, 406 (Ist Dept

2013) ("The FOIL requester's statutory remedy for an untimely response or ruling is to deem the

response a denial and commence a CPLR article 78 proceeding ..."). Respondents' delays did

not significantly prejudice petitioner, as the commencing of1he instant Article 78 proceeding wasnot impeded.

Respondents' denial of the initi~ FOIL request stated that the "records/information, if

disclosed would interfere with law enforcement investigations or judicial proceedings,"

insulating them under Public Officers Law 87 (2) (e) (i). The denial ofpetitioner's appeal

broadened the grounds for the denial to include protection of non-routine "criminal investigative

4

13

..

techniques or procedures," citing Public Officers Law 87 (2) (e) (iv); protection of intra-agency

records "cont3ln[ing] preliminary data and information," citing Public Officers Law 87 (2) (g)

(i); and "disclosure to just one party would interfere with the ordinary course ofcourt-supervised

discovery and deprive other parties of their right to a fair trial or impartial adjudication in

ongoing litigation," citing Public Officers Law 87 (2) (e) (i) and (ii).

In support of their opposition to the instant petition, respondents submit affmnations from

several prosecutors. Joseph A. McCormack (McCormack), chief of the Vehicular Crimes Bureau

in the office of the District Attorney, Bronx County, correctly states that New York Criminal

Procedure Law (CPL) 240.20 (1) (k) requires a prosecutor to provide a criminal defendant only

with the most recent calibration or inspection of the Intoxilyzer instrument along with the test

results. Answer, exhibit P. McCormack contends that "records older than the most recent

calibration and maintenance records," as requested, "would most likely be denied under Crim.

Pro. Law 240.20 (1) (k), if made in the context ofa criminal proceeding." Id., ~ 10.

Additionally, he claims that such disclosure "would clearly usurp the criminal court judge's

authority to determine the scope of discovery in specific prosecutions then-pending and to be

brought before the criminal court." Id., ~ 11. He estimates that there are approximately 1,000

criminal prosecutions in the Bronx involving the use of an Intoxilyzer that might, therefore, be

interfered with, by disclosure ofdocuments or information otherwise excluded by CPL 240.20

(1) (k). Id., mr 15-16.

Jill Hoexter (Hoexter), an assistant district attorney in the office of the District Attorney,

New York County, estimates that there are approximately 1,300 pending criminal prosecutions in

Manhattan involving the use of an Intoxilyzer. Answer, exhibit Q, ~ 6. Hoexter does not draw

any conclusions about the possible impact of the instant petition on pending criminal

5

o14

..

prosecutions. Adam Silberlight (Silberlight), an assistant district attorney in the office ofthe

District Attorney, Richmond County, estimates that there are approximately 300 criminal

prosecutions in Staten Island involving the use of an Intoxilyzer. Answer, exhibit R, , 6. He

also offers no opinion about the instant petition. Karen Rankin (Rankin), an assistant district

attorney in the office ofthe District Attorney, Queens County, estimates that there are over 800

criminal prosecutions in Queens involving the use of an Intoxilyzer. Answer, exhibit 8, ~ 6.

Rankin offers no opinion about the instant petition. Craig Esswein, an assistant district attorney

in the office of the District Attorney, Kings County, estimates that there are over 700 criminal

prosecutions in Brooklyn involving the use of an Intoxilyzer, without commenting on the instant

petition. Answer, exhibit T, , 6. Hoexter, Silberlight, Rankin and Esswein all have had

substantial experience and responsibility in prosecuting crimes related to the operation ofa motor

vehicle following the conswnption ofalcohoL Unlike McConnack, these assistant district

attorneys do not explicitly raise the issue of

"interfere[nce] with the criminal courts' ability to manage the orderly conduct oftheir own cases and, in particular, would usurp the ability of criminal court judgesto manage pre-trial discovery and would undoubtedly unnecessarily burden thesecourts with issues relating to the admissibility ofdocuments which mightotherwise have been unavailable through discovery."

McCormack affinnation, , 16.

Respondents' key objection to disclosme of calibration and maintenance records for all ofNYPD's Intoxilyzers is the potential interference with law enforcement investigations or judicialproceedings. Their argument follows a line of reasoning that seems very broadly based:

Intoxilyzers are used in determining a suspect's blood alcohol level; criminal charges and

penalties are tied to a suspect's blood alcohol levels; production of general information about

Intoxilyzers interferes with criminal law enforcement, although information about a specific

6

tJ

15

..

instrument in a specific case does not. Respondents contend that this "generic detennination"

(Memorandum of Law at 2), is supported by several cases, citing, not~bly: Matter ofPittari v

Pirro, 258 AD2d 202 (2d Dept 1999) (Pittarz); Matter afLegal Aid Socy. v New York City Police

Dept., 274 AD2d 207 (1st Dept 2000) (Legal Aid Society); Matter ofLesher v Hynes, 19 NY3d

57 (2012) (Lesher).

Upon examination, the authority cited proves to be of limited use for respondents'

purposes. When the defense attorney in the Pittari murder case sought essentially all records

obtained in connection with the homicide investigation, the district attorney refused, claiming a

blanket exemption under Public Officers Law 87 (2) (e) (i). The trial court held that a district

attorney may assert a blanket exemption under Public Officers Law 87 (2) (e) (i) to all material

compiled in connection with the investigation of a crime and the pending prosecution ofthat

crime. The Second Department found, on appeal, that "it is a;pparent that FOIL disclosure of

materials pertaining to the arrest and prosecution ofa defendant in a pending criminal proceeding

would interfere with the adjudication of the criminal proceeding." Pittari, 258 AD2d at 207.When criminal defendants awaiting trial requested documents relating to their charges in

Legal AidSociety, including complaint report worksheets, complaint follow-up reports, arrest

reports, activity log entries and arrest photos, NYPD refused the requests, relying upon Public

Officers Law 87 (2) (e) (i), protecting material compiled in connection with the investigation of

a crime, and Public Officers Law 87 (2) (t), protecting material that, if disclosed would

endanger the life or safety ofa person. On appeal, the First Department affmned the denial of

the FOIL reques~. "We also agree with the Second Department's holding in Pittarithat 'a

generic determination' could be made that disclosure under FOIL ofdocuments pertaining to a

petitioner's arrest and prosecution would interfere with the pending criminal proceeding." Legal

7

16

. .

Aid Society, 274 AD2d at 214.

Lesher's fact pattern differs significantly from these cases, because the petitioner had no

connection to the underlying legal matter. Petitioner, an independent attorney and author, made a

FOIL request in 1998 for records pertaining to the case in which, in 1984, a man accused of

sexual abuse fled to Israel, beyond the reach ofthe United States's extradition power. The Kings

County District Attorney provided materials, some with redactions. In 2007, petitioner made a

second FOIL request in the matter for records from 1993 to the present. TIlls time, the district

attorney denied the request and the appeal on the grounds of Public Officers Law 87 (2) (e) (i)-

(iv), emphasizing interference with law enforcement investigations or judicial proceedings. The

trial court,granted the petition with some qualifications. On appeal, the Court of Appeals

affirmed the Appellate Division's dismissal ofthe petition, stating that the "Appellate Division in

Pittari and Legal Aid Society adopted the [blanket or generic exemption to a pending case]

analysis when interpreting Public Officers Law 87 (2) (e) (i), as do we." Lesher, 19 NY3d at

67. The Court of Appeals held that disclosure "posed an obvious risk ofprematurely tipping the

District Attorney's hand." Id. at 67-68. This was not an idle concern because the suspect faced

an extradition proceeding in Israel when the second petition was filed. The District Attorney's

denial ofthe FOIL request then subscribed to the law.

The subsequent detennination by the Israel Supreme Court that barred extradition of the

suspect was no reason to now decide otherwise, according to the Court of Appeals. However, it

recognized that petitioner

"is free to make another FOIL request for the correspondence andcommunications that he sought in this proceeding, based on the intervening Israelijudicial decision. Ifhe is correct in his assessment of the decision's effect - amatter for the FOIL records access officer to consider in the first instance - thereis, practically speaking, no longer any pending or potential law enforcement

8

.'

17

. ,

investigation or judicial proceeding with which disclosure might interfere. PublicOfficers Law 87 (2) (e) (i) would not preclude release of the records."

Id. at 68.

Lesher, one of the latest and the most authoritative rulings in this subject area, still

addresses the generic or blanket exemption for specific potential law enforcement investigations

orjudicial proceedings, akin to the other cases cited, and many other similar ones. The instant

petition, by contrast, is unr~lated to any potential law enforcement investigation or judicial

proceeding, that is, any identifiable, specific or known potential law enforcement investigation or

judicial proceeding. Rather, it addresses test equipment used day-in and day-out to measure

suspects' blood al'cohol content, which may, thereby, exonerate suspects or, at least, deter any

criminal prosecution on the grounds of driving under the influence, In essence, respondents'

reasoning that ifan examination ofNYPD's Intoxilyzers leads to their abandonment, or a

dramatic change in their use, then there might, arguably, be interference with potential law

enforcement investigations or judicial proceedings.

However, petitioner's position is bolstered by the dicta in Lesher that opens the door to

disclosure when there is "no longer any pending or potential law enforcement investigation or

judicial proceeding with which disclosure might interfere." [d. There are admittedly no pending

specific law enforcement investigations or judicial proceedings at issue in this petition, unlike

Pittari and Legal Aid Society. The several thousand pending cases referenced by the various

prosecutors above would not be disturbed by granting this petition, since the suspects/defendants

involved already have the right to the most pertinent Intoxilyzer information particular to their

case, under CPL 240.20 (1) (k).

Assuming the petition is granted and a wealth of infonnation regarding the Intoxilyzers is

9

18

.. .

made public, there are two outcomes: all equipment proves to be accurate and well-maintained;

or, not all equipment proves to be accurate and well-maintained. The first outcome will not

interfere with law enforcement investigations or judicial proceedings; it may even have the

salutary effect of bolstering confidence in the handling of Dill cases. The second outcome, the

discovery offaulty or defective equipment, can only be in the public interest in preventing

improper prosecutions. Such an outcome should not be the sort that a public agency cites to, in

order to protect its records from disclosure. That would be an arbitrary and capricious

determination, and fail under CPLR 7803 (3).

Respondents' expressed concern as to potentially burdeninglhampering crinlinal court

judges with the effects of such FOIL disclosure is misplaced as such disclosure, in fact, may

reduce the number ofapplications for disclosure. Further, rulings on whether such disclosed

materials are admissible would not "burden" criminal court judges in most cases, as thegoverning evidentiary rules are clear. In any event, the effect of such disclosure is too

speculative to bar the disclosure of the records sought.

For the reasons above, the petition is granted, and defendants shall comply with the FOIL

disclosure request of August 3D, 2012, within 30 days of receipt ofa copy ofthis order.

Petitioner's request for an award of attorneys' fees in its favor is granted, as pennitted by Public

Officers Law 89(4)(c), as respondent failed to timely respond to petitioner's FOIL request See

Matter ofLegal Aid Society v. New York State Dept. ofCorr. & Community Supervision, 105

AD3d 1120 (3re! Dept 2013); In the Matter ofNew York Civil Liberties Union v. City ofSaratoga

Springs, 87 AD3d 336 (3 rd Dept 2011). The court notes that respondents failed to supply case

law in support of their argument that legal fees should be denied because petitioner law finn

appeared in this proceeding pro se.

10

19

Accordingly, it is

ORDERED and ADmDGED that the Petition is granted, and defendants shall

comply with the FOIL disclosure request of August 30,2012, concerning all calibration and

maintenance records for all Intoxilyzer 5000EN machines owned or maintained by the NVPD for

the last five years (beginning January 2008 until the present), within 30 days ofreceipt ofa copy

of this order with notice ofentry; and it is further

ORDERED that, with respect to attorneys' fees, within 60 days of entry of this

decision/order, petitioner is directed to submit an accounting of its costs/attorneys' fees, by

affidavit/affirmation, setting forth the hours expended, nonnal hourly rate charged, years of

expe~ienceofco~sel etc, and respondents are directed t9 review such accounting and, should they

agree with such costs/fess, reimburse petitioner for such costs/fees, within 30 days from receipt of

the accounting; alternatively, within 30 days ofreceipt of the accounting, respondents shall

provide petitioner, by affidavit/affirmation, specific reasons for their disagreement within such

accounting. Ifthe parties are Wlable to agree on the amount ofthe costs/fees, the parties shall meet

and confer to resolve such issue. Ifunable to resolve within 30 days of their meeting, either side

shall file a motion to determine such costs/fees, with a copy ofthis order attached, within 150 days

of entry of this order, which, upon final submission, may be referred to a Special Referee to hear

and determine, in accordance with CPLR 4317(b)1; and it is further

ORDERED that within 30 days of entry of this order, petitioner shall serve a copy

October 17 , 2013Doris Ling-Cohan, J.S.c. ~

d ~Failure to comPlFafb'f:ef!' "fl!iver or defaul' ~'T. clai ,as appropriate.

OCT 23 2013 11COUNTY CLER!(

NEWYf..J,;,

upon respondents, with notice ofentry.

DATED:

J:\Article 78\Perlmutter Art 78.gotthelf.wpdr

20

NOTICE OF VERIFIED PETITION, DATED JANUARY 31, 2013(pp. 20-22)

REPRODUCED FOLLOWING

21

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK--------- ------------x

In the Matter of

THE LAW OFFICES OFADAM D. PERLMUTTER, P.C.

Petitioner,

For Judgment Pursuant to Article 78

-against-

NEW YORK. CITY POLICE DEPARTMENT,and RAYMOND KELLY, in his official capacityas Commissioner of the New York City PoliceDepartment,

Respondent.

------------------------------------------------------------------x

Index No. 13/100220

NOTICE OFVERIFIED PETITION

PLEASE TAKE NOTICE that upon the annexed verified petition of Adam D.

Perlmutter, verified on the 29th day of January 2013, an application will be made to Room

130 at the Supreme Court located at 60 Center Street, New York, New York, at 9:30 a.m.

on March 7,2013 for an Order and Judgment:

(1) directing Respondents to provide records responsive to Petitioner's August 30,

2012 FOIL request (attached to the verified petition as Exhibit T);

(2) awarding attorneys' fees in favor of Petitioner and against Respondents in an

amount to be determined at the conclusion of this proceeding; and

(3) granting Petitioner such other and further relief as this Court may deem just and

proper.

\i

1

...,

22

. , . ;~.~'..;;.answer and supporting affidavits shall be filed at least five daYs

23

VERIFIED PETITION, SWORN TO JANUARY 29, 2013(pp.23-38)

REPRODUCED FOLLOWING

24

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK------------------------------------------------------------------xIn the Matter of

THE LAW OFFICES OFADAM D. PERLMUTTER, P.e.

Petitioner,

For Judgment Pursuant to Article 78ofthe Civil Practice Law and Rules

-against-

NEW YORK CITY POLICE DEPARTMENT,and RAYMOND KELLY, in his official capacityas Commissioner of the New York City PoliceDepartment,

Respondent.

------------------------------------------------------------------x

Index No. 1~/I~CJz;!-()VERIFIED PETITION

PRELIMINARY STATEMENT

1. This Article 78 proceeding pursuant to the N.Y. Freedom of Information

Law ("FOIL"), Article 6 of the Public Officers Law ("POL"), seeks to vindicate the right

of the Law Offices of Adam D. Perlmutter, P.C. and of the public to access records held'

by the New York City Police Department regarding the maintenance of its Intoxilyzer

SOOOEN machines.

2. Petitioner has discovered materials indicating that previously

malfunctioning machines may be placed back into service without being repaired.

Hoping to discover information that would shed light on the scope of this practice,

Petitioner sought records under FOIL regarding the testing of these machines.

- 1 -

25

3. In response to Petitioner's request, Respondent has not produced a single

document. Respondent's denial to both the initial request and Petitionds appeal offer

only general language that fails to provide a reasonable ground for the denial.

VENUE

4. Pursuant to C.P.L.R. 7804(b) and S06(b), venue in this proceeding lies

in New York County, in the judicial district in which Respondent took the action

challenged here and where the offices of Respondent are located.

PARTIES

5. Petitioner the Law Offices of Adam D. Perlmutter, P.C. is a law finn

primarily focusing in the practice of criminal defense and civil rights litigation. The finn

is located at 260 Madison Ave., Suite 1800, New York, NY. The finn's website is

located at www.adplegal.com.

6. The firm's principal attorney is Adam D. Perlmutter, who has been

admitted to practice law in New York State since March 1, 1993. Mr. Perlmutter has

served as a member of the Legislative Working Group of the New York Governor's

Impaired Driving Task Force. Mr. Perlmutter is a member of the National DUI College,

and is a c~rtified operator of the Intoxilyzer SODDEN machine pursuant to United States

Department ofTransportation regulation 49 C.F.R. Part 40. He has also published and,

given lectures on the practice of OWl defense for the New York State Bar Association

and the Legal Aid Society ofNew York.

7. Respondent New York City Police Department ("NYPD") is a law-

enforcement agency administered under the New York City Administrative Code, Title

- 2 -

26

14. The NYPD is a public agency subject to the requirements of the FOIL, POL 84 et

seq.

8. Respondent Raymond Kelly is a public officer who is named in his official

capacity as the Commissioner of the NYPD.

9. Unless otherwise specified, all allegations of fact are made on information

and belief, and are based upon cases in which Petitioner has served as counsel,

conversations with Assistant District Attorneys and other attorneys practicing in New

York State, and counsel's own investigation.

FACTUAL BACKGROUND

A. The Role and Functionality of Breathalyzer Machines in New York City

10. Breathalyzer machines have been in public usage since 1954. By 1971,

New York courts acknowledged breathalyzers as scientifically accepted and reliable

methods of determining a subject's blood alcohol. See People v. Donaldson, 36 AD2d 37

(4th Dept. 1971). Prior to the advent ofbreathalyzer machines and breath testing, police

would determine a subject's intoxication based only on their observations. ld.

11. The breath test readings now determine the statutory penalties for drunk

driving in New York City. A driver with .05 or less percent blood alcohol level is

presumed not impaired. See VTL 1195(2)(a). A driver more than .07 but less than .08

is presumed impaired, but not necessarily intoxicated. See VTL 1195(2)(b). A driver

registering a .08 or more is charged with driving while intoxicated. See VTL 1192(2).

A driver registering a .18 or more will be charged with aggravated driving while

intoxicated. See VTL 1192(2-a)(a).

- 3 -

27

12. Even beyond the statutory penalties, an individual's breath test reading

will affect his ability to plea bargain with the prosecutor. Petitioner is not privy to all of

the related plea policies within New York City, but has learned, for example, that the

New York County District Attorney's Office will not offer a reduced charge of driving

while impaired (VTL 1192[1]) to a defendant who registered a .13 or higher.

13. An individual who is arrested for drunk driving faces tremendous pressure

to take the breath test. If an individual refuses to take a breath test, his license is

automatically suspended for one year. Additionally, a refusal to take the breath test will

adversely impact a defendant's ability to plea bargain. Some district attorney's offices,

including New York County and Kings County, have a policy to not offer a reduced

charge of driving while impaired (VTL 1192[1]) to a defendant who refused a breath

test.

14. In New York City, an individual suspected of drinking and driving is

offered only a breath test; the subject may not voluntarily give a blood or urine sample.For chemical breath-alcohol testing, the NYPD exclusively uses the Intoxilyzer 5000

6801 series, also known as an Intoxilyzer 5000EN.

15. The NYPD maintains 28 Intoxilyzer 5000 machines throughout New York

City. See People v. Alia}, 36 Misc. 3d 682,689 (Sup. Ct., NY County 2012)

(summarizing testimony ofNYPD Officer Adrian Arav).

16. The Intoxilyzer machines are kept at six precincts: the 28th Precinct at

2271 8th Avenue in Manhattan; the 7th Precinct at 19 1/2 Pitt St. in Manhattan; the 45th

Precinct at 2877 Barkley Avenue in the Bronx; the 112th Precinct at 68-40 Austin Street

in Queens; the 78th Precinct at 65 6th Avenue in Brooklyn; and the 120th Precinct at 78

- 4 -

28

Richmond Terrace in Staten Island. See NYPD Highway District Intoxilyzer 5000EN

LD.T.U. Procedural Guide at 27 (the "Procedural Guide"), attached hereto as Exhibit A.

17. Two machines are kept at each location. See Transcript of testimony by

NYPD Technician Patricia Zippo from People v. Lopresti~ Sup. Ct., Bronx County, May

26,2011, Kindler, J., Index No. 1828-2007 (Zippo Test.) at 361 :S-8, attached hereto as

Exhibit B.

18. After a subject is arrested for drunk driving, he is brought to one of the six

NYPD precincts with an Intoxilyzer machine. The subject is then offered a breath test,

and informed that a refusal will result in an automatic suspension of his license. In New

York City, the breath test and coordination tests are offered and conducted on videotape.

See Procedural Guide at 19, attached as Exhibit A

19. The Intoxilyzer SOOOEN machine is a highly technical machine that

analyzes a subject's breath alcohol ratio using infrared spectrophotometry, and then

computes the subject's blood alcohol ratio. See Mary Catherine McMurray, Demystifying

the Intoxilyzer 5000 (March 2006) (attached hereto as Exhibit C).

20. The subject first breathes into a tube, and the breath travels into the sample

chamber. Infrared light is then passed through the sample chamber where it is collected

on the opposite end into filters. The filters generate an electronic reading based upon the

energy reading, and the electronic reading is then converted into a numeric reading. The

conversion process involves numerous delicate parts, and slight imperfections in any part

will drastically alter the results. A more detailed explanation is presented in McMurray's

article at Exhibit C.

- 5 -

29

B. The Requested Documents

21. The documents that are subject to Petitioner's FOIL request are generated

by the calibration, inspection and maintenance of the NYPD's Intoxilyzer SODDEN

machines.

22. The most routine check of the Intoxilyzer machines by a technician is the

field inspection. The NYPD conducts field inspections on each machine approximately

every five to fourteen business days. See Zippo Test. at 361:13-16, attached as Exhibit B.

23. The field inspection tests check to ensure that the machine is running

properly. During these tests, a technician runs an internal diagnostic check, a breath tube

heater check and three calibration checks. Id. at 377:20-378:15.

24. The internal diagnostic check generates a printout sheet that verifies that

the internal computing components are functioning properly, and includes a printer check

(an example of a diagnostic printout is attached hereto as Exhibit D). See also Exhibit C

at 19 (listing checks performed during an internal diagnostic check).

25. Three calibration checks are run on an Intoxilyzer during a field

inspection. During the calibration checks, the machine runs a test on a simulator

solution, which operates as the control, or reference standard. The solution is ethanol

predetermined to register at .10. When the calibration tests are run on the machine, it

generates a print out sheet (an example of which is attached hereto as Exhibit E).

26. The technician also fills a handwritten form with the Intoxilyzer's reading

on each calibration test, and notes the performance of the oth~r checks (an example is

attached hereto as Exhibit F).

- 6 -

30

27. The handwritten form also includes a remarks section, which is usually

blank, as in Exhibit F. Occasionally, however, it contains information about machines

being placed in and out of service. For example the field inspection form attached hereto

as Exhibit G indicates that a machine was placed out of service, but" [u]pon inspection

said instrument was found to be in good working condition and placed back into service. II

There is no additional information about why the machine was taken out of service, or

whether any adjustments or repairs were made.

28. A full calibration is done on each machine every six months. Zippo Test.

372:14-21. During a full calibration test, a technician runs a diagnostic check, additional

calibration tests, and simulates a number of potential errors to ensure that the machine is

able to properly detect them. Id.

29. As with the field inspection test, during the full calibration of an

Intoxilyzer, the technician prepares a handwritten coversheet that states that the checks

were performed (an example of a calibration coversheet is attached hereto as Exhibit H).

The technician notes on the coversheet what tests were conducted during the calibration.

30. These records are kept in the ordinary course of business of the NYPD.

Zippo Test. at 374:17-22; 379:20-25; Business Records Certification of Gamil Hannah

(attached as Exhibit I).

31. If the machine is operating correctly, each of the simulated errors

generates a printout properly corresponding to the error. Id. at 376:2-8.; Intoxylizer 5000

Operator's Manual, (the "Manual") at 25-26, (attached hereto as Exhibit J).

32. The calibration tests run during a full calibration of an Intoxilyzer machine

are similar to the same tests that are run during a field test, except that five tests are run

- 7 -

31

instead of three. As with the field inspection calibration tests, the machine analyzes the

simulator solution and a printout is generated to reflect the readings of the calibration

checks (an example is attached as Exhibit K).

33. As part of the full calibration, the NYPD technician runs the same internal

diagnostic tests that are run during a field inspection. The results of the diagnostic check

are reflected on a printout. See Exhibit D.

34. One of the additional checks conducted during a full calibration is to

ensure that the Radio Frequency Interference ("RFI") detector is working. To conduct

the test, the NYPD technician will hold a transmitting police communications radio near

the Intoxliyzer during a test. If the Intoxilyzer is functioning properly the machine will

register an inhibited RFI, and print the corresponding error sheet. (An example of an

inhibited RFI printout is attached as Exhibit L.)

35. The technician also checks the Intoxilyzer's ability to detect potential

interferents, which may cause the machine to register an incorrect reading. The

technician introduces both methanol and acetone in separate tests. If the machine is

functioning properly, it will print an "Interferent detected" and "Interferent subtracted"

sheet for each test. (Examples of Interferent detected and subtracted printouts are

attached hereto as Exhibit M.)

36. A properly functioning Intoxilyzer machine can detect alcohol present in

the subject's mouth, rather than alcohol present in deep lung air. In order to test the

Intoxilyzer for proper functioning of its mouth alcohol detection, a technician uses

Bianca or mouthwash immediately prior to blowing into the machine. See Zippo Test. at

- 8 -

32

427:17. If the Intoxilyzer is functioning properly it will register an invalid sample, and

print a corresponding test error sheet (an example is attached hereto as Exhibit N).

37. An invalid test is registered if the technician commits a procedural error,

for example, the wrong button is pushed or the breath sample is given at the wrong time.

DW'ing a full calibration, a technician intentionally commits such an error and the

Intoxilyzer produces an invalid test printout (an example is attached hereto as Exhibit 0).

38. The technician also simulates an insufficient sample during a test by

blowing too little air into the sample chamber. Zipp Test. at 429: 1-6. The machine

should register an insufficient sample and print the corresponding error sheet (an example

is attached hereto as Exhibit P).

39. Petitioner has learned that the NYPD maintains a maintenance log for

each Intoxilyzer SODDEN machine operated in the city. (An example of a maintenance

log is attached hereto as Exhibit Q). These logs contain handwritten notes detailing when

each machine is calibrated, repaired or taken out of service.

40. The bulk of these records are not produced as discovery in a criminal case.

Even when specifically requested, these records are usually not part of discovery. See

Transcript for People v. Alvarado, 2011NYOIOllS (Crim. Ct., NY County July, 232012)

(Judge Schecter denying motion to compel individualized calibration printouts and

maintenance log, and New York County Assistant District Attorney Mireille Dee arguing

that FOIL is the proper method of obtaining documents) (attached at Exhibit R).

41. Other jurisdictions place these records online and open for public

inspection at all times. See http://www.fdle.state.f1.us/Content/Alcohol-Testing-

ProgramlMenu/Public-Records/Electronic-Data.aspx (last viewed Jan. 29,2013) (printed

- 9 -

33

examples from the Alcohol Testing Program - Florida Department of Law Enforcement

website attached at Exhibit S).

42. Similar testing program disclosure from Washington State Patrol Forensic

Laboratory Services can be viewed http://www.wsp.wa.govlbreathtest/wdms_home.htm

(last viewed Jan. 29,2013).

43. Petitioner is not aware of any harm caused by the open distribution of

these records.

C. The FOIL Requests

44. Petitioner first requested the desired records from the NYPD in a letter

dated August 30, 2012 (a copy is attached without exhibits hereto as Exhibit T). The

letter was mailed on August 31, 20 12 (a copy of the Affidavit of Service is attached as

Exhibit U).

45. Petitioner's request letter specified that it requested documents pursuant to

POL 87 and 89. Petitioner requested copies of all calibration and maintenance records

for all Intoxilyzer machines owned or maintained by the NYPD for the last five years.

Petitioner specified the individual records requested, and included examples of each.

Furthermore, the request letter gave the serial numbers of 20 Intoxilyzer machines that

Petitioner believes to have been maintained by the NYPD during the past five years.

Petitioner explicitly indicated that the records for these 20 machines would be necessary,

but not sufficient to fully satisfy Petitioner's request.

46. On September 19,2012, Petitioner had not received any communication

from the NYPD that his request had been received. Petitioner called the NYPD records

office and inquired as to the status of his request. A paralegal at the NYPD records office

- 10 -

34

informed petitioner that Lt. Mantellino was still deciding the request, and would probably

issue a decision by the end of the week.

47. In a letter dated September 20, 2012, Lt. Richard Mantellino from the

NYPD FOIL Unit denied Petitioner's request (a copy is attached hereto as Exhibit V).

The letter simply claimed: "I must deny access to these records on the basis of Public

Officers Law 87(e)(i) as such recordsl information, if disclosed would interfere with law

enforcement investigations or judicial proceedings." The letter informed Petitioner of

how to appeal the decision.

48. Petitioner submitted his appeal in a letter dated September 25,2012 to

Jonathan David, Records Access Appeals Officer for the NYPD (an copy is attached

hereto as Exhibit W). In the appeal letter, Petitioner cited Matter ofGould v. New York

City Police Dept. 89 NY2d 267,277 (1996) and Matter ofLesher v. Hynes, 19 NY3d 57,

67 (2012), to demonstrate that the NYPD had a duty to identify potential hann posed by

the disclosure of these documents. Petitioner's appeal letter further explained that the

requested documents are not generated during tlie testing of any individual that may be

under investigation or have a pending litigation. Additionally, Petitioner noted that the

NYPD routinely testifies that these documents are created in the routine course of

business.

49. Petitioner mailed the appeal letter certified mail/return receipt requested

on September 25,2012. NYPD received the letter on September 27,2012 (USPS return

receipt card and website tracking infonnation attached at Exhibit X).

50. Officer Jonathan David denied Petitioner's FOIL appeal in a letter dated

December 3, 2012 (a copy is attached hereto as Exhibit Y). The letter denies Petitioner's

- 11 -

35

request pursuant to Public Officers Law 87(2)(e)(i), (ii) and (iv) and 87(2)(g). The

letter offers only statutory language to support each ground for denial, with the exception

of the terse explanation related to POL 87(2)(3)(i) and (ii): "[D]isclosure of the

requested records to just one party would interfere with the ordinary course of court-

supervised discovery and deprive other parties of their right to a fair trial or impartial

adjudication in ongoing litigation." The letter informed Petitioner of his right to

commence an Article 78 proceeding within four months of the date of the decision.

51. To date, Respondent has provided no documents, portions of docwnents,

or information extracted from documents.

CAUSE OF ACTION: ARTICLE 78 REVIEW OF AWRONGFUL DENIAL OF A FOIL REQUEST

52. Article 78 is the appropriate method for review of agency determinations

concerning FOIL requests.

53. The NYPD's refusal of Petitioner's FOIL request was arbitrary, capricious,

an abuse of discretion, and constitutes an unreasonable denial of Petitioner's request.

Additionally, the NYPD has failed to perform the duties enjoined upon it by FOIL.

54. Petitioner has a right to the information regarding the calibration and

maintenance of the Intoxilyzer SODDEN machines.

55. Respondent has not produced the information sought by the Petitioner. To

date, Respondent has not turned over a single page of material.

56. Petitioner has exhausted its administrative remedies when it appealed the

NYPD's denial of its FOIL request and the NYPD denied that appeal. Petitioner has no

other remedy at law.

- 12 -

36

57. The NYPD's responses to both the initial request and subsequent appeal

were not timely. It did not respond to the Petitioner's initial request within five days as

required by Public Officers Law 89(3)(a). It did not respond to Petitioner's appeal

within 10 days as required by Public Officers Law 89(4)(a).

58. Respondent has not provided a reasonable justification for its non-

disclosure of the information sought by Petitioner. The NYPD has failed to adequately

explain any real or potential threat posed by the production of these documents.

59. Public Officers Law 87(2)(e)(i), (ii) and (iv) are not applicable because

the requested records are made in the regular course ofthe NYPD's business, do not offer

any insight into non-routine investigative techniques, would not produce an unfairness to

any party in a pending litigation, and would not interfere with any court-ordered

discovery.

60. Public Officers Law 87(2)(g) is inapplicable as the records contain only

factual data. See Comm. on Open Govt. FOIL-AO-1733 (1980) (attached as Exhibit Z).

REQUEST RELIEF

WHEREFORE, Petitioner seeks judgment:

1) Pursuant to C.P.L.R 7806, directing Respondent to comply with theirduty under FOIL to perform an adequate search for the records requested inthe Petitioner's August 31, 2012 FOIL request and to disclose all portionsof the responsive records not subject to any exemption or other privilege;

2) Directing Respondent to produce the same requested documents on anongoing basis as such calibration and maintenance on the NYPDIntoxilyzer machines are conducted;

3) Awarding attorneys' fees and reasonable litigation costs as allowed underNew York Public Officers Law 89; and

- 13 -

37

4) Granting such other and further relief as the Court deems just and proper.

Dated: New York, New YorkJanuary 29, 2013

By:---,I--__---"''''"'''---__-=- _

Law ffices of Adam D. Perlmutter, p.e.260 Madison Ave., Suite 1800New York, NY 10016Tel: (212) 679-1990Fax: (888) 679-0585adp@adplegal.com

- 14-

38

VERIFICATION

STATE OF NEW YORK )) ss:

COUNTY OF NEW YORK )

Adam Perlmutter, an attorney admitted to practice before the courts of the State of

New York hereby affirms, pursuant to C.P.L.R. 2106, under the penalties of perjury

that:

1. I am the principle attorney of the Law Offices of Adam D. Perlmutter,

P.C., the Petitioner in the within proceeding.

2. I make this Verification pursuant to C.P.L.R. 3020(d)(3).

3. I have read the attached Verified Petition and know its contents.

4. All of the material allegations ofthe Verified Petition are true to my

personal knowledge, and all statements in the Verified Petition are true to my

personal knowledge or upon information and belief. As to those statements that are

based upon information and belief, I believe those statements to be true.

Sworn and subscribed to methis 29th day of January 2013

- 15 -

39

EXHIBIT A - ANNEXED TO VERIFIED PETITIONNYPD Highway Patrol Procedural Guide

(pp. 39-142)

REPRODUCED FOLLOWING

40

POLICE DEPARTMENTCITY OF NEW YORK

H'IGHWAY DISTRICTINTOXILYZER 5000 EN

I.D.T.U. PROCEDURAL GUIDE

41

INDEX PAGESPAGES

1. D.W. r. Detection and Arrest 1-6

2. Intoxicated Driver TestingUnit Procedures 7-9

3. Int~xi~ated Driver Testing UnitArrest Reports 10-11

4. Blood 12-14

5. Urine 15-17

,e- 6.Videotape Procedures 18-20

7. D.W.I. Related Offenses 21-27

. 8. Intoxilyzer 5000 EN Software Questions 28-31

. 9. Operations Order Number 68

.10. Precinct Command Codes

11. Patrol Guide Procedures

42

D.W.I. 'DETECTION AND ARRESTThe goal of the, New York City Police Department is to effectively' enforce D.W.1.laws and thereby reduce the number of accidents and fatalities caused by thesedrivers.

D.W.I. detection can be categorized into three phases. Each phase is a buildingblock towards identifying the impaired driver.

Phase #1 .. VEHICLE IN MOTION~Observing the vehicle in motion begins when the officer first notices the vehicle,driver or both. Your attention may be drawn to the vehicle by such things as:

A moving violation. (i.e. Speeding, unsafe lanechanges, or disobeying pavement markings)

An equipment violation., (Le. Defectiveheadlight/taillight, defective muffler)

Unusual driving actions. (i.e. Weaving within a lane,moving at slower than normal speed, vehicle stoppedin traffic lane for no apparent reason)

Evidence of alcohol or drugs in vehicle (Le. Openalcohol container, visible drug paraphernalia)

Driver appearance (Le. Face too close to windshield,gripping steering wheel tightly, staring straight aheadwith fixed eyes)

Inappropriate behavior (Le. Throwing an object fromvehicle, urinating at the roadside, arguing with othermotorists).

43

'

I' ,

Key visual cues indicating driver impairment include:

1. Turning with a wide radius2. Straddling center ,or lane marker3. Almost striking 'object or vehicle4. Weaving5. Braking erratically6. Driving the wrong way on a one way street7. Driving recklessly or aggressively

, . ,

Phase # 2 - PERSONAL CONTACT

Phase two involVes the face-to-face observation and interview of driver.Note! Phase two may take place without phase one. Thismay occur during a checkpoint, vehicle stop or when youhave responded to the scene of an accident or disabledvehicle.

Face-to-tace observation and interview of the driver 'allows the officer to use 3senses to gather evidence of alcohol or drug influence:

) The sense of sight;) The sense of hearing; and) The sense of smell.

44

There are a number of things you might obselVe during the interview that wouldbe describable clues or evidence of alcohol or drug influence. Among them are:

Bloodshot eyes; Soiled clothing; Fumbling 'fingers (Le. dropping license); Alcohol containers; Drugs or drug paraphernalia;

'L.: . Physic~1 coordination (i.e. swaying, unsteady,;'~t>x balance problems);:g-1":{' Unusual actions (i.e. hiccuping, vomiting).h%~~;~iX: . .

~:';:::i~;JIfEAHING::~~~~1;;:;\~< .~;lf~~!~:'Among the, things you might hear dl~ring the intelView that would be describable

;i-~.~iJ~~i:.clues or eVidence of alcohol or drug Influence are these::;J~~!:z.t~:'

,I": ~ ~E~~~f;!~gf~~~s;,~Y: .. Unusual statements..,,y;,SMELL'{fiJ:1W

7:l'" .'.

::S::9"yhere are things you might smell during the intelView that would be describable~:ii.:;~i:~:;clues or evidence of alcohol or drug influence. Typically, these include:

~~I~' :;., ..

.i.::... h

,;:;/Dr: Open Alcoholic beverages; Marijuana; "Cover up" odors like breath sprays; Unusual odors.

" .

45

REQUIRED ABILITIESProper face-to-face observation and Interview of the driver demands two distinctbut related abilities: .

> The ability to recognize the sensory evidence ofalcohol or drug influence; and~ The ability to describe that evidence clearly and

convincingly.

',' Phase #3 ... PRE-ARREST SCREENING,,'

.,:>.In the pre-arrest screening phase, your first task is to decidewhether there is probable cause for arrest. Your d~cision

' involves careful review of each of the, obpervations you have:. made. Conduct ~ "review" of the evidence cqllected during>/ the vehicle in motion and personal 'contact phases. Your...: second task may be to administer an Alcosensorllntoxilyzer::test. The (P.B.T.) test is not mandated to affect a D.W.1..~: arrest..~ ~

TIlE ALCOSENSORJINTOXILYZER S-D2THIS TEST IS NOT TO BE THE SOLE BASIS OF ARREST. THERE MUST BE

OTHER, CLEARLY OBSERVABLE EVIDENCE OF D.W.!.

46

Administering the Alcosensor/lntoxilyzer SD2

':to Operate: Press "READ" button and hold down for at least 10seconds. The 'display should read ".002" or less. If ahigher reading is shown, depress and lock "SET"button, wait 2 minut~s, repeat ready check. If thedisplay shows ilL", the battery must be replaced.After receiving reading of 11.00211 or lower,depress and Jock I'SET" button.

Explain the t~st procedure to the subject prior toobtaining a breath sample.

Request subject to take a deep breath a.nd blowone continuous brea.th through the mouthpiece.The SUbject must brow strong enough toilluminate display light ilA" and long enough toilluminate display light 118". When light liB"

i"umjnate~, press uREADIl button, beforeexhalation ceases.Keep read bufton depresseduntil reading peaks. The highest value is thesubjects breath alcohol concentration. . During}~sting, if lights nAil and "13" do not illuminate, thesubject has not provided a satisfactory breathsample.

Note final maximum f(~ading, depress and lock "SET"button. If, as a result of a test, the display is higher than".002" or less it will take several minutes to reset beforethe instrument can be used.

47

POINTS TO REMEMBER, ,

",

: + Subject must be under the' officers direct observation 20",., minutes prior to administering Arcosensor/lntoxilyzer S-. D2, to insure the erimin.a.ti.0n of IImouth alcohol, II which can

cause a.n exaggerated read.i.l1g.: Do not allow the subject to hold tile instrument.; Do not allow tobacco smoke to be blown through the

mouthpiece. .'~:' .' Store the unit with the IISET" button locked in the down

~;. ". position. .:': ".Av~id sUbjecting the unit to extremes of temperat~re -;', !.;:~:~storage in a coat pocket in hot or cold weather will help" maintain the ins~rument in its optimum operating

.... temperature range..' + Do not subject the instrument to severe mechanical .

;..... shock. ',.:,. ~. 'Use a new mouthpiece for, every test.

'~.:'. Subjects mouth should be free of all foreign matter.\:. Ex. GUM, CHEWING TOBACCO AND FOOD

48

urpose: To provrde chemicar testing for persons a'ested for operating amotor vehrcle whre unds, -,e inftuen" of Johor or drugs.

'

i1

I

+

'I,

t:

.t

a

.1

jIi.:

I

'l

.1

t!

,.

GUIDE IS PREFARED TO ASSIST HIGH.WAY DISTRICT I.D.T.U,rN pE R FO R MrNc rroxr cie o nrvER EXAnrNATroNs.

1. Make entry of afacility. (Time of

rival/depa_rture In |.D1T.V_. Log at testingarrival at facility, Rank, lqamJanj,i"n

R TO ENTERING THE I.D,T.U, TESTNG ROOtvt, ALL MOSECURE THEIR FIREARMS.

I,D.T.U.

resurning patrol)

INTOXfLYZER SOOO EN BED ON/OFF BUTTON WILL NEVER BEFNED OF BY THE I.D.T.U, TECHNICIAN.

2' Crreok the rntoxifyeer 6000 EN and verrf4 thal the ,,RED"ted "rhdoator irqrriis

"ri,-oJi;itm.ent is in ,sTANDBy,

pqoq. (rr rish ili ;';. instrumenr). Acrivarenstrumonr bv depressins r-re ;erw;iiJi'i*i-l,ton(appraximaterv e *inrte ,a^-ui'iin,r,i,i f"' "'

3' Check the printer and verify that thee s onough paper inthe printer to conduct examinaton=- (lf no paper n tray,technician wll place papor in rray oetore siadie;il.

49

4. Ascertain the next available I.D.T.U arrest log numberfrom the J.D.T.U. arrest log.

5. Verify that all equipment Is operating properly (Intoxily~er5000 EN, Breathalyzer, Simulator or video equipment). Ifequipment Is not functioning properly place out ofservice, in

50

CONDUCTING THE I.D.T.U. EXAMINATION

I.D.T.U.TECHNICIAN(continued)

1O.lf the subject refuses to take tne test or does not give aclear indication' of his refusal, P~rt'C of the IntoxicatedDriver Examination Instruction Sheet must be read to thesubject (If the subject refuses the breath test, the I.D.T.U.Technician must offer the subject the coordination exam).

11 .If the defen~ant agref?s to take the test. utilize theArresting Officers Report IDTU (PO 213-151) and followthe Intoxilyzer 5000 EN operational checklist and initialeach step that Is performed.

12.When the sUbject has completed giving a breath sampleor refused to do so offer the coordination exam.

13.Complete the data entry Information Into the Intoxilyzer5000 EN.

'."NotE: IF THE INTOXILYZER 5000 "EN SAC READING IS LESS:~ THAN .05 OF .08 % AND THE S,UBJECT ,STILL APPEARS TO BE'. INTOXICATED' OR IMPAIRED, AND THE ARRESTING OFFICER

::' BELIEVES THE SUBJECT IS IMPAIRED, READ THE HIGHWAY". DISTRICT INTOXICATED DRIVER EVALUATION SECOND TEST:,'. (BLOOD/URINE) ANALy'SIS 'FORM AND NOTIr:Y'THE HIGHWAY:, DISTRICT THAT A ORE TECH~ICIAN IS REQUIRED. IF THERE IS

NO ORE WORKING, THE IDTU TECHNICIAN WILL TAKE THEURINE SAMPLE IF APPLICABLE.

IF THE. SUBJECTS BAC '-READING IS ABOVE .30 % THE HIGHWA YDISTRICT 1.0.T.U. TECHNICIAN WILL DIRECT THE ARRESTING OFFICER

":" TO HAVE THE SUBJECT REMOVED TO THE HOSPITAL. SUBJECTS THAT:r:~~' .HAVE A BAC READING OF .30 % CAN BECOME A MEDICAL CONDITION/~i.~~/ AND THE SUBJECT WILL BE REMOVED TO HOSPITAL.'''~',., .

.,lg.~ "/,'," ..";. ~:;:~

',"'.

.y}:,~,

51

POLICE DEPARTMENT - CITY OF NEW YORKHIGHWAY .DISTRICT -I.D.T.U. ARRESTREPORTS .

1. INTOXICATED DRIVER EXAMINATION INSTRUCTION SHEET PO 244-154A - Follow instructions on the examination sheet and perform thecoordination exam exactly as it I.s written on the sheet. In addition, indicate onthe sheet and on the I..D.T.U. Technicians Test Report the subjectsperformance on the coordInation examination.

2. 1.0.T.U. TECHNICIJ\NS TESt REPORT PO 321-149 (01-01)-RMU - TheIp.T.U. Tech,nician will prepare this report in his/her own handwriting. Inaddition to the required captions the I.D.T.U. Technician will Indicate In thebox captioned Comments/Observations: a complete description of the subject(i.e. physical description, clothing. identifying marks, glasses, shoes, etc). TheTechnician is required to sign the bottom portion of the report.

: 3. ARRESTING OFFICERS REPQRT -IDTU PO 213-151 (REV.01-01)-RMU-Arresting Officer will prepare all the caption's above the dotted line andI.D.l.U. Technician will utilize t~e Intoxilyzer 5000 operational checklist.

". 4. I.NTOXICATED DRIVER EXAMJNATION (Arresting Officer) PD 244-154,~. (Rev.01~01)-RMU - Sheet number 1.and 2 will be prepared by the arresting

52

P01.lCeOEPARTMENT - CITY OF NEW YORKfllGHWAY DISTRICT - I.D.T.U. ARRESTAEPO'RTS

7.lrJf~iWP;YJ;)ISTRlc;r-R~QU,ESTFO'R uRJ.NE;eX~M'.Nt\1IdNI'9 a21-146'(Q.1l!Q,,1H"".MV P~nt HiOhWe.y '~r$J&t TaskForc~:I.D~T'U. ,T,ehtiIQl$ri~ are the

~nTy technicians autho~ed;tottt.ke a yrJn~ $ampl~,tr()m'a ~J.lblEJot. This formwnJ .t>e prE!P~rEJQby t~~.Highway Tacf1n.lclanand Jl'1addltt6,n~metJrih~ will be'transported'to Hig~way LJnlt 3s@tlonhQ'use atwhfeh trmethErD~$'Kdftlcer willsecure the spesirnen tnthe: refrtgeralor awaiting pickup by the laboratory. Allcaptions int~(:j Highway.O!st~9t Utine Log will be prepared as' well as theinvoices fors:haln ofevtdenee tOlaPoratory.

:. URINE - Technicians should try to obtain two two samples from the subject. Securethe top of the specimen cont'1iner and initial the specimen, place in the

urin~ bag~d seal properly.

HIGHWAY DISTRICT NON- PER'FORMANCE OF VIDEO TEST PO 321-148(01-Q'1)- RMU - Pent This report will be prepared when there is no videotest performed during an I.D.T.U. examination.

~ 9. REPORT OF REFUSAL TO' SUBMIT TO CHEMICAL TEST DMV AA~134Technician will prepare this report and distribute as indicated (Arresting officermust bring two (2) capias of the refusal to court and give them to the DistrictAttorney when the complaint Is drawn).

53

, ,

Yf>~:};;,;;;i, .~~ ,;j;:;~~:~,L4~.:'i~;.:,': " '.:.' , . :. ". '. ~:'l,'" ~',.)i' O!~;".:;,',. '

54

officer, and hospita.l staff that may draw blood ifconsent is received. If su~lect refuses to give a bloodsample, the job will be handled as a refusal to submitto a blood test.

4. Remove blood kit from outer box.

5. Open blood kit box (REMOVE AND DISGARD THENEW YORK STATE POLlCE CRIME LAB,SUBMISSION FORM, THIS FORM IS NOT TO BEUSED)

.O$PITAL PERSONNEL REMOVING BLOOD WILL PERFORM'rTHl: FOLLOWING PROCEDURES:

HOSPITAL"ERSONNEL

a) Sterilization of the skin of the sUbject should beaccomplished by utilizing a suitable antiseptic agent otherthan alcoho} or any antiseptic containing alcohol (an

. antiseptic pad containing an Iodine solution is included inthe blood kit).

b) A physician, nurse or laboratory technician will obtain (2)blood samples following the instructions provided in theblood kit titled "INSTRUCTIONS, FOR VACUTAINERSYSTEM BLOOD COLLECTION KIT".

I.D.T.U.'T,eCHNICJAN'~ontinued)

1. .

6. Upon receiving the (2)' samples. from the hospitalauthorities the technician will thoroughly mix the bloodsamples by" geh'tly inverting, both tubesapproximately twenty (20) times DO NOTSHAKE. '

7. Fill in the '(2) seals (Form 200-350) provided In theblood kit. In the space provided for No, indicate theI.D.T.U. arrest number.

55

8. Seal each tubebyplaclng ~.5eal (Form 2QQw350) overthe stappey ~d wrapping ,the overhanglngeggesofthe $eal fin;nlydewn the side of the tUbe so that thespecimen numberof tile seal can be read.

9. Replace the sealed tubes plus remainder of bloodcollection apparatus in the blood kit (plastic) box.

10.Fill In POLICE OFFICER'S REPORT on cover of(plastic box). Disregard the CHAIN OF POSSESSIONentries. '

13.Enter on outer (cardboard) box where it states"FROM" enter Rank, Name, Shield # and Command.

14.Voucher the, ~IQod kit ateltAetthe pracinclof arrest (Jrth~ practnot Where the hospItal Is (o~ted. After theblood Is 'vQuphered, the I.D.r.U. ~eohnlclan willtran$.port~e bldoGito the PolleeLab.oratory at 150..14JamaIoo Ave,.:~ Qu~en~J N.Y. 11423 for ~alysls~ (IF

,THE TEOHNIGfAN. CANNOT. TRANSPORT THEBLOOD WITI"UN THE:IR TQUROF DlJTY, THEBLQOD SPECJIVlSN. WILL TRANSPORTSDTO THf=HIGrIWAY',UNfT BASE, AND THIi DESK OfFICERWILL ASSIGN AN OFFICER TO 'DELIVER THEBLOOD WliH THe NEXT PLATOON

'11.8eal the blood kit (plastic) box with (4) iNTEGRITYseals. Fill In captions "sealed by" and date.

12.After placing seals on plastic box, place Intocardboard box.

. .

56

URINE

. Bendiner and Schlesinger is the laboratory that processes all the I.D.T.U. arrests

. when urine Is taken as evidence. Highway District and Task Force I.D.T.U.; Technicians are the only members of the service authorized to take urine';. samples.

PROCEDURES'. ,

.' ' Highway District I.D.T.U. Technicians when the' SUbject has consented to give a" urine sample after reading the Highway District Intoxicated Driver Evaluation: Second Test (BLOOD/URINE ANALVSIS).':' If the subject consents to give a urine sample, notify the Highway District and:~. ascertain if a (ORE) Drug Recognition Expert is working. The Highway DistrictI' Dispatcher will send the ORE to the testing facility.

. I.D.T.U.TECHNICIAN

1. Obtain latex gloves; secure (2) urine specimencontainers and an evidence collection bag.

2. Take subject -to the bathroom with the arrestingofficer; arresting officer will assist the HighwayTechnle!an in securing the bathroom (NO CIVILIANOR MEMBERS 'OF rHE SERVICE ARE TO BE INTHE BATHROOM WHEN URINE IS REQUESTEDFROM THE SUBJECT). .

.., .,

NOTE: WHEN TAKING URINE OR WHEN ESCORTING A PRISONER TO THEBATHROOM NO MEMBERS OF THE SERVICE OR THE I.D.T.U. TECHNICIANARE TO BE ARMED, ALL FIREARMS MUST BE SECURED.

IF THE SUBJECT IS A FEMALE, THEI.D.T.U. TECHNiCiAN WILL HAVE AFEMALE OFFICER ASSIST IN OBTAININING THE URINE SPECIMEN. THETECHNICIAN WILL RECORD THE OFFICERS RANK, NAME, SHIELDNUMBER AND COMMAND IN THEIR MEMO BOOK. THE TECHNICIAN WILLTHEN FOLLOW THE FOLLOWING PROCEDURES.

3. Highway I.D,T.U. Technicians will have the subject fillboth the (2) urine specimen containers minimum halfway if possible.

IS

57

4. Upon receiving samples I.D.T.U. Technician willsecure containers by twisting on top, tight andInsuring that specimen containers are sealed.

5. Prepare the chain OF CUSTODY envelope asfollows:

a) I, (Print I.D.T.U. Technicians name) then(/.D. T.U. Technicians Signature) provided aurine sample in a sealed container labeledwith code number for SUBSTANCE. ABUSETESTING at (Time) on (date) to (collector willsign)

b) Bottle Sealed (check yes/no)c) Place urine samples in CHAIN OF CUSTODY

BAG andseald) (After sealing I.D.T.U. Technician will sign in

collectors signature and date)

6. Technician will prepare the Highway DistrictHIGHWAY DISTRICT - REQUEST FOR URINEEXAMINATION PO Highway District I.D.T.U.Technicians and Task Force are the only techniciansauthorized to take a urine sample from a subject. Thisform will be prepared by the Highway Technician andin addition, the urine will be transported to HighwayUnit 3 for processing. All captions in the HighwayDistrict Urine Log will be prepared as well as theinvoices for chain of evidence to laboratory.

7. As of October 5, 1999, I.D.T.U. Technicians mustprepare a drug and custody control form whensubmitting urine to the Highway District.

16

58

URINE, .

, -'"

:'':I~f:.fdTECHNICIANS WILL PREPARE THE THE HIGHWA Y DISTRICT DRUG.'{fJJ.pt;USTODY FORM AS FOLLOWS.. .; , ~{\,~:~ ",;

:: (t}tP,TION':'NUMBER~.

1. DONOR NAME = Defendants Last name, First name, Middle initialID OR SOC SEC ## =IDTU # @ Highway District U~ine Control #

(From HD IDTU Urine Log)

7. COLLECtORS NAME-PRINT;: IDTU Technicians Last NameCOLLECTORS SIGNATURE:;: IDTU Technicians SignatureCOLLECTORS SITE LOCATION = IDTU LocattonDATE OF COLLECTtON =Date Urine Sample Obtained

9. DATE =Date Urine Sample ReceivedTIME = Time of Urine SampleRECEIVED BY ;: Signature of Desk Officer

59

VIDEOTAPE

I.D.T.U VIDEO TAPE PROCEDURES:HIGHWAV DISTRICT I.D.T.U. VIDEO 'TECHNICIANS WILL UTILIZE:rHE FOLLOWING PROCEDURES WHEN VIDEO TAPING

.:lNTOXICATED DRIVER ARRESTS.

VIDEO RECORDINq C!PERATIONALPROCEDURES;~ VIDEO; TECHNICIAN

1) Obtain the nElxt available uBLANK" videotape.

2) Remove the tape from the blank videotape.caseana enter the required information.

A) I.D.TU.TEST NUMBERB) READING (after result is obtained from I.D.T.U.

Technician)C) PRISONERS NAME (Last name, First name)D) ARREST # (N/A if not available)E) PRECINCT OF ARRESTF) I.D.T.U. TECHNICIANS NAME (Last name)G) VIDEO TECHNICIANS NAME (Last name)H) REMARKS (State Ifcoordination test was

pertormed)

3) Activate video equipment b turning on power.(Inspect equipment and ascertain thatequipment is working properly- themonitor, camera, and VCR)

4) Place videotape into recorder. (Press rewind torewound)

18

60

.VIDEOTAPE

I.D.T.U VIDEO TAPE PROCEDURESVIDEO

;.'TECHNICIAN..(continued)

5) Press "RECORD" and uPLAY" simultaneouslywhen ready to begin taping. (Record light willilluminate to show recording is in progress).

6) If the subject indicates that they will submit to thebreath test the video technician will pause the tape(after direction of the J.D.T.U. Technician thatvideo tape coverage will be suspended).

7) Record the sUbject giving a breath sample into theBreathalyzer/lntoxilyzer 5000 EN.

8) Activate the videotape when the I.D.T.U.Technician indicates that he his ready to performthe coordination test.

9) Upon completion of the I.D.T.U. examinationvideo, rewind tape, press ejects and placevideotape into plastic case (Insure that all captionsare filled In on videotape before securing tape).

NOTE: ALL TAPES WILL BE TRANSPORTED BACK TO THEHIGHWAY UNIT COMMAND WHEN LEAVING THE I.D.T.U.FACILITY AND PLACED IN THE PROPER STORAGE BOX.

10)Whenever video recording equipment is notworking properly and placed out of service, thevideo technician. will make a notification to theHighway District.

]9

61

ADDITIONAL DATA5

~.

Co. All subjects wlJl be videotaped giving a breath sample into theBreathalyzer/lntoxilyzer 5000 'EN as per Highway District Memo

, 23-18.:. At "NO TIME" should the videotape be erased or rewound once

video recording has begun.:,:+ When. no videotape is performed for any reason the Desk Officer. at the testing facility is required to witness the I.D.T.U. test (as per

Patrol Guide Procedure 208-40).

20

62

Law Sectlonl lARy'pers.on, n ahiacoldent,,of

, tesl tosuch operator has consumed alcohol , the police officer rnay requestsuch operator to submit to a chemlcal test in the maRner set forth insubdlvision two of this section. t.,

2t

'iu

{i

I1:

it:{..l

'l'''

.t:,

LIt

!r,'ti'r

,I,t,t,(-.t

iI

I

63

D.W.t C,H'A~8GES\. COMMON LAW D.WeI. SECTION 1194 (2) (a)

Any person who operates' a motor vehicle, in this state shall be'd~emed to have given consent to a chemical test of one or more of'the following: breath, bloo'd, urine or saliva, for the purpose of',determining the alcoholic and/or drug content of the blood provided

.< that such test is administered by or at the direction of a police officer:, with respect to a chemical test of blood, at the direction of a police"officer .

):'1192.1 V.T.L. (DRIVING WHILE ABILITY IMPAIRED), - No': person shall operate a motor vehicle while the persons.. ability to operate such motor vehicle is impa.ired by the,: consumption of alcohol. (.050/0 through .07%)

First conviction (Violation) Two convictions within

5 years is a (violation) Three convictions within

a 10 years is a(misdemeanor)

'. 1192.2 V.T.L. (DRIVING WHILE INTOXICATED} - No, person shall operate amotor vehicle while such person; has .08 of one per centum or more by. weight of alcohol;' in the persons blood as shown by chemical analysis of, such persons blood, breath, urine or saliva, made

pursuant to the provisions of section 1194 of this article. First conviction

(misdemeanor) Two convictions within 10

years is a(E felony)

.Three convictions within10 years is a (0 felony)

22

64

: 1192.3 V.T.L. (D.W.I. Observatlonl- No person shall: .operate a motor vehicle w~lile in an 'intoxicated condition.; .

~ 1192.4 V.T.L (IMPAIRED BY 'DRUGS} - No person shalloperate a motor vehicle while the persons ability to

"operate such a motor vehicle is impaired by the use of a:.drug.

First conviction(misdemeanor)

Two convictionsin 10 years '(Efelony)

Threeconvictions in10 years (0felony)

, 1194.2 V.T.L (REFUSAL} - Refusa.l to submit to achemical test (Breathalyzer/lntoxilyzer 5000

'" .EN)(violation)

:. 1192.A V.T.L. (ZERO TOLERANCE) - No person under. 21 years of age

shall operate amotor vehicleafter . havingconsumedalcohQI (.02% to.050/0 BAC)

23

65

~' The zero tolera~ce law (Patrol Guide Proee,dUr~:,208-1) ..fC This law permits a police offiG~r to temporarily detalfl' a motorist less than 21

~~. years of age. for administering a chemical test. upon'reasonable grounds to~t,.believe that an individual is operating a motor vehicle after consuming alcohol.,b The detainee must have a chero;~1 te.st reading of .02% to .05% to be charged

~I'~ . _.. )~r under the "zero tolerance law. II This law Involves a civil penalty. rather than a~,; criminal oharge. If the detainee submits to a chemical test and a reading of .06%4tf pr higher is obtained and the detainee Is over 16 years of age, the detainee will

~t: ~e ~rrested and charged with intoxicated or Impaired driving accordingly.r_,y~~

i~r>;1W~l~~.r. .~~~~~

~l{'~t,~1r,'~"f".'/'~"..F .1;:'ta'; .)~t,!If;~1,1'it.~. ~lItt.f

,,~., .. ,

",

: .

24

66

25

VEHICLE AND TR'AFFI:C LAW SECTIONSREFERRING TO BLOOD

:No 'person entitled to withdraw blood pursuant to SUbparagraph one'of this paragraph or hospital employing such person, and no other.~ employer of such person shall be sued or held liable for any act done:.or omitted in the course of withdrawing blood at the request of a',police officer pursuant to this section...

:Section ,1194.4 (a) subparagraph (3) states:. . ~

'~r Section 1194.4 (a) subparagraph' (2) states:::;:f~

" ,

~~:~if:..t!i~' . >~,~t Section 1194.4 (a) subparagraph (1) states:..~i/j); , .'~J. ..['4 At the request of a police officer, the following persons may withdraw~~$,:.blood for the purpose of determining the alcoholic or drug contentfl;' therein (i) a physician, a registered pro~essional nurse or a registeredltt~' physician's assistant; or (ii) under the supervision and at the direction

';.Qf a physician: a medica.l laboratory tec~nlcian or medical. fechnologist as classified by -civil service; a phlebotomist; an,':aavanced emergency medical technician as certified by the

~~:~epartment of health; or a medical laboratory technician or medical:technologist employed by a clinic?1 laboratory approved under title.:. five of article five of the pUblic health law. This limitation shall not

~. :a.pply to the taking of urine, saliva or breath specimen.

f:,.ny person who may have". cause, of a~tion, arising from the. ~ithdrawal of blood as afores~ld, for ,whl,cr n personnel liability

, '. exists under subparagraph two of this 'paragraph, may maintain suchI , . _ .l'i: .. . action against the state if any .p~tSOh 'entitled to ~ithdraw bl~od.'pursuant to paragraph (2) hereof' -acted at the 'request of a pohce

I officer employed by the state, or against the appropriate politica.l'subdivision of the state. No. action shall: be maintained pursuant tor this subparagraph unless notice of claim is duly filed or served in~ ~;. compliance with law.

:;#~}::l:'~'f'~11\"f.; ..'~t~i;,l_r~~}'~::~:)2~