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Barket Epstein Win in Appellate Division Changes the Landscape for DWI Discovery in New York State

A message from founding partner Steven Epstein, head of the firm’s Vehicular Crimes Litigation Group;

“I am happy to report that the Appellate Division, Second Department, rendered a decision today in Matter of Singas v. Engel.

The case is a significant decision, as it is the first appellate decision in the state holding that New York’s discovery statute, section 240.20 of the Criminal Procedure Law, encompasses gas chromatography data and other records produced during the certification of the reference standard (in this case simulator solution) used during breath testing of a person suspected of driving while intoxicated and that a trial judge is therefore authorized both to order the prosecution to produce such discovery, and to make diligent efforts to obtain it even if it is not within their possession.

In the ordinary course of discovery in Nassau and other counties, prosecutors have simply provided the defense in a DWI case with a single page certification attesting to the reliability of the reference standard. However, the process used to certify the standard is typically gas chromatography, which produces voluminous documents during the testing —including calibration curves, negative controls, positive controls, etc. — none of which were disclosed. In response to motions to compel, prosecutors would claim that this additional data was not in their possession, as it had not been disclosed by the State Police or other agency that had certified the simulator solution.

Clarifying a split that had developed in the trial courts, this decision now makes clear that all of the records produced during the testing of the reference standard are encompassed under the statute, and that a trial court may order a prosecutor to disclose them and, if they are not in the District Attorney’s possession, to make a diligent, good-faith effort to obtain them.

To enforce this right to discovery, it is incumbent on defense counsel to demand all records produced during the certification of the reference standard, including all chromatograms. Upon the prosecutor’s failure to produce such records, counsel should file motions to compel such discovery, citing to this case, and seeking sanctions against the People for failure to obtain and disclose the reports.

Steven Epstein is trial counsel on this matter, and Donna Aldea, head of the firm’s Appellate and Post-Conviction Litigation Group, briefed and argued the appeal. Both are Partners at Barket, Epstein Kearon Aldea & LoTurco, LLP.

Click here to read the decision.