In Knox DWI trial, doubt raised by gum

— Photo from ​npas.com

Datamaster DMT is a standard instrument used by many police agencies to test blood-alcohol content by analyzing breath samples. By New York State law, analysis of a person's blood, breath, urine, or saliva can be used as evidence to determine blood-alcohol content.

KNOX — The integrity of tests for intoxication was scrutinized this week before a jury, a rare trial in this rural town, which found Dwayne P. Rockenstyre to be guilty of driving while ability impaired, a lesser offense than the original charge, and failing to keep right.

Rockenstyre, 53, was arrested for driving while intoxicated, per se; driving while intoxicated; and failing to keep right, when he and his wife were on their way home from a Christmas party early in the morning on Dec. 22, 2012.

The jury found him not guilty on the charge of driving while intoxicated, per se, which requires a blood-alcohol content of .08 percent or higher, on what the jury’s foreman, Frank Fuss, called a technicality that raised reasonable doubt: Rockenstyre had gum in his mouth around the time his breath was tested.

During jury selection, David Szalda, an assistant district attorney, representing the people, described his burden to prove his case beyond a reasonable doubt. On a visit to his 8-year-old niece during Father’s Day, they put together a jigsaw puzzle depicting the Statue of Liberty. Szalda went through the items of the statue that were pieced together as he worked with his niece: the crown, the book, and the gown. But the statue’s face and torch weren’t visible, he asked the jurors to imagine. “If you held me to ‘beyond a reasonable doubt,’ that is indeed the Statue of Liberty,” said Szalda.

While the methods of field sobriety testing and the Datamaster DMT instrument used to read blood-alcohol content were belabored in the witnesses’ testimonies, defense attorney James Tyner of the Law Office of Mark Sacco spent much of his questioning during jury selection on the missing video evidence of the tests performed on Rockenstyre. Szalda said it is administrative policy that, if recordings made by the Albany County Sheriff’s Office aren’t requested within 60 days, they are destroyed.

Judge James Corigliano charged the jurors with adverse inference, allowing them, but not requiring them, to infer that the video footage now unavailable to Rockenstyre would have weakened the prosecution’s case.

“This case can be summed up in three words, and those three words are a comedy of errors,” Tyner said during his closing statement, in which he argued that his client wasn’t intoxicated.

After hearing testimony over the course of two days, by Rockenstyre and three Albany County Sheriff’s officers, the six jurors — Katy Smith, Thomas Nowak, Mary Beckmann, Kenneth Runion, Andrew Brooks, and Fuss — deliberated for several hours and reported their verdict on the morning of June 19.

Rockenstyre, of 206 Street Rd. in Knox, is director of sales at Celtic Marketing Food Brokers in St. Johnsbury, Vermont.

He and his wife, Melinda, a property manager at Oxford Heights apartments in Guilderland, went to a Christmas party in 2012 at The Point restaurant, on Madison Ave. in Albany, reserved for her colleagues. There, Rockenstyre testified, he drank three to four glasses of club soda with Jack Daniels. He ate steak and chicken during dinner, he said, adhering to a strict weight-loss diet that prevented him from eating carbohydrates or drinking any alcoholic beverages besides liquor.

As midnight drew closer, the restaurant closed down, Rockenstyre testified, and his wife’s inebriated employer asked that Rockenstyre stay and use his credit card for a group of employees who wanted to go to a nextdoor bar.

At around 1 a.m., Rockenstyre drove with his wife, another woman who worked at Oxford Heights and her friend as passengers. Rockenstyre said he passed three Albany City police cars on his way home.

Rockenstyre stopped at a Burger King drive-through for his passengers and drove to Oxford Heights to drop off the two women besides his wife, walking them to their doors.

Driving home on Township Road, Rockenstyre was pulled over by Deputy Steven Mattfeld, who testified that he has been with the Albany County Sheriff’s Office for 19 years.

Mattfeld testified that he saw Rockenstyre’s driver-side tire cross the center line of the road many times before he turned on his emergency lights behind Rockenstyre’s gray sport utility vehicle.

Rockenstyre testified that his wife was attempting to grab him between his legs in a behavior his lawyer later called “frisky.” He hesitated to pull over after the emergency lights turned on because there was a ditch immediately next to the shoulder, Rockenstyre said.

“In fact, we don’t have the videotape from Deputy Mattfeld that would have shown crossing the center line,” said Tyner. Mattfeld said during his testimony that a microphone used to record his conversations was not working that day in 2012.

“I respectfully submit to you that the deck is stacked and that not one of those tests can fairly and accurately determine anything about a person,” Tyner said during his closing statement to the jury, arguing that Rockenstyre didn’t clearly know what could be held against him in the field sobriety tests used by Mattfeld. Mattfeld contended in his testimony that Rockenstyre was asked if he had any questions and told, during the one-leg stand test, for example, to keep his hands at his sides.

Rockenstyre said that, as a former smoker, he chews gum frequently. He testified that he spit the gum out around the time his Miranda warnings were read and after the breath test.

In his testimony, Sergeant Phillip White did not say that Rockenstyre had gum in his mouth. Rockenstyre's blood-alcohol content read by the breath test was .13 percent. Driving while intoxicated, per se, involves a blood-alcohol content of .08 percent or higher.

Szalda encouraged the jury to re-examine the testimony to establish a timeline. White, who has 25 years of experience with the sheriff’s office, said he gave Miranda warnings before starting a required 20-minute observation period, which is required to blunt the variables, like residual mouth alcohol, that could affect the results of the breath test. Defendants aren’t allowed to put anything in their mouths for the entire time. If they do, the 20 minutes starts again.

“The gum was taken out of his mouth prior to that observation period even beginning,” Szalda said. “There was no reason for restarting that observation period.” If a person does have residual mouth alcohol that could affect the result of their blood-alcohol content, Szalda explained, the instrument would show a spiked result, which didn’t happen.

As evidence Szalda had introduced certificates of calibration for the instrument used to read Rockenstyre’s breath, which showed it was in working order.

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