The admissibility of alcohol test results from the Smart ...

1 The admissibility of alcohol test results from the Smart Start Smart Mobile Device in Probation Violation Hearings October 2017. Marc Picker, Esq., Judge peggy Hora (Ret.), David Wallace, Esq., and Judge Brian MacKenzie (ret.). Executive Summary This paper explores the evidentiary standards generally accepts the Smart Start ignition interlock regarding the admissibility of alcohol test results device as reliable, and therefore, a Frye hearing was from the Smart Start Smart Mobile Device. Our unnecessary before accepting it into evidence.

2 Research establishes that the test results are admissible as evidence of alcohol use in a probation As the Bohrer court noted, the Smart Start ignition violation proceeding. interlock device meets the National Highway Traffic Safety Administration (NHTSA) standards Probationers do have a diminished set of established for evidentiary and non-evidentiary BAC. constitutional rights dependent upon the testing devices. NHTSA has tested the Smart Start observance of special conditions. As a result, there technology and found it exceeds their standards.

3 Have been no successful constitutional challenges to alcohol and other drug testing and abstinence The Smart Start Smart Mobile Device is identical requirements when set as a reasonable term of to the equipment contained in the Smart Start probation. ignition interlock, but in a different format. It is a portable, handheld unit that is lightweight and The more generally accepted legal rule regarding easy to use with a 120-hour battery life and it has scientific testing and expert opinion is provided an alcohol -specific fuel cell that delivers accuracy in FRE 702 as interpreted by Frye v.

4 United States, at a level that meets the 2013 NHTSA standards. It 293 F. 1013 ( Cir. 1923) and Daubert v. Merrell can be used to monitor all risk-levels of participants Dow Pharmaceuticals, 509 579 (1993). These based on the number of test windows (customized cases provide guidelines for determining the and/or random), and it is camera-equipped for admissibility of expert witnesses' testimony. facial detection. It will also provide a GPS location at the time of the test. In People v. Bohrer, 37 Misc 3rd 370, (July 13, 2012).

5 The court held, In New York, the admissibility of Our research conclusively establishes that the test scientific evidence is governed by the Frye rule results of the Smart Start Smart Mobile Device, which it noted is that expert testimony based is generally accepted as reliable by the relevant on scientific principles is admissible but only scientific community, and therefore no hearing after a principle or procedure has gained general under FRE 702 or related court decisions is necessary acceptance in its specified field.

6 The court for the admission of those results in a probation then held that the relevant scientific community violation hearing. Introduction abstinence requirements when ordered as a reasonable term of probation. T. his paper explores the evidentiary standards regarding the admissibility Legal Standards of of alcohol tests results from the admissibility Smart Start Smart Mobile Device. Our research establishes that these test results In the absence of any constitutional are admissible as evidence of alcohol use in a prohibitions, the only remaining issue is probation violation proceeding.

7 Evidentiary. What legal standard applies to the admission of the results of the Smart In recent years illegal alcohol and other Start Smart Mobile Device? drug use has become a long term national The well-established connection In utilizing scientific evidence or testimony, between drug use and crime and the costly almost every state relies upon either a failure of incarceration as a solution to such duplicate or a derivative of the requirements crime, created a demand for a more effective provided in the Federal Rules of Evidence (FRE).

8 5. The general rule of admissibility of opinion The Smart Start Smart Mobile testimony is provided in FRE 701. A lay opinion must be: Device test results are admissible as evidence of alcohol use in a Rationally based on the perception of the witness;. probation violation proceeding. Helpful to clearly understand testimony In response, the criminal justice system has or determination of a fact in issue; and, developed a number of new approaches to the Not based on scientific, technical or supervision of individuals who are suffering specialized knowledge.

9 From substance use One of the core principles of all of these approaches has The general rule on admissibility of expert been the use of the technological advances opinion testimony is provided in FRE 702, in alcohol and other drug One of which provides: these technological advances is in the form of portable alcohol testing devices such as If scientific, technical or other specialized the Smart Start Smart Mobile Device. knowledge will help the trier of fact to determine a fact in issue and: Probationers do have basic constitutional rights and therefore are entitled to The testimony is based on sufficient constitutional protection.

10 However, theirs facts or data;. is a diminished set of constitutional rights The testimony is the product of reliable dependent upon the observance of special principles and methods; and, conditions, Morrisey v. Brewer, 408 471, 480 (1972). As a result, there have been The expert has reliably applied the no successful constitutional challenges principles and methods to the facts of to alcohol and other drug testing and the case. Page 2. The Courts have struggled with these Rules, testimony. On February 16, 2017, the Florida and have examined them by looking at the Supreme Court declined to adopt the forum where the evidence is being provided.