A RINSE BEFORE A NO TO TEST

Judge declined DWI test, then was allegedly over limit after mouthwash

ROBERT GAVIN STAFF WRITER
Section: Capital Region,  Page: B1

Date: Wednesday, July 8, 2009

GREEN ISLAND -- Albany County Family Court Judge Gerard Maney initially refused a breath test at a sobriety checkpoint on the Green Island Bridge last month -- then tested at nearly twice the legal limit after drinking mouthwash, court papers show.


Maney, 59, was charged with driving while ability impaired after he allegedly avoided a police checkpoint on the bridge, prompting a short pursuit by police on June 18.


The DWAI charge, a violation similar to a speeding ticket, was brought after the judge allegedly had a blood alcohol level of 0.07. It is just below the 0.08 legal limit needed for misdemeanor driving while intoxicated.


Court papers obtained by the Times Union allege Maney, after first refusing to take the initial breath test, registered a 0.15 on it. However, at least one expert said the pre-screening device that was used should be considered highly unreliable, particularly when factoring in the presence of mouthwash.


Maney, who lives in Menands, told police when they stopped him just after 8:30 p.m. that he was on his way to Verdile's restaurant in Troy to pick up food. He displayed glassy eyes and had the smell of alcohol on his breath, court papers said.


The documents stated that police gave Maney a horizontal eye-movement test and another known as a "walk and turn." The documents indicate he could not perform another test -- standing on one leg -- because of medical problems with his legs.


It was that he was asked to perform the initial breath test, blowing into the hand-held pre-screening device. He refused to do so, court papers said.


He later "admitted that he rinsed his mouth with mouthwash," and a bottle of mouthwash was found behind the driver's seat of his 2007 Chrysler, the court papers said.


Maney then consented to the test and the result was 0.15. He was taken into custody and read his rights. Court papers show after he was given a DWI "warning" and read his Miranda rights, Maney was "undecided and wanted to talk to a lawyer." At that time, he submitted to a chemical breath test, which registered his blood alcohol level at 0.07.


Maney, a Family Court judge since June 1991, pleaded not guilty Tuesday at his arraignment before town Justice Joseph Liotta. "How you can go from 0.15 to 0.07 in an hour is one or both of the machines weren't operating correctly," Joseph McCoy, the attorney representing Maney, told reporters outside court.


Albany lawyer Peter Gerstenzang, who specializes in DWI cases, said generally speaking, blood-alcohol results from pre-screening devices are highly deceiving and unreliable.


And the results can be "off the charts" when mouthwash is involved, he said.


Maney was arrested during DWI patrols prompted by Albany County District Attorney David Soares that involved 16 law enforcement agencies. The court papers say the judge was eastbound toward Troy when he made an illegal U-turn "to avoid the safety checkpoint."


He allegedly turned left on Albany Avenue, and Green Island police followed him with sirens and lights activated.


"Suspect Maney did not comply with the stop and proceeded down Route 32 in Maplewood and finally came to a stop in front of the Purple Pub restaurant," the court papers state. He was issued tickets for making an illegal U-turn and failure to yield to an emergency vehicle.


Maney, who remains on the bench, declined comment after the hearing.


Robert Gavin can be reached at 434-2403 or by e-mail at rgavin@timesunion.com.