Indeed, DeMarco's decision already has been cited by town judges who have issued similar rulings in Gates and Sweden. Although DeMarco declined to be interviewed, he argued in a written answer to the prosecution's motion that the action of the District Attorney's Office could have "a chilling effect on judges' exercise of independent judgment" in future cases.

"Judges are generally immune from suits challenging their substantive rulings - even when it is alleged that they are wrong - and there is no reason to depart from this rule here," DeMarco wrote. "To hold otherwise would undermine the judicial independence necessary for the proper functioning of our criminal justice system."

It's highly unusual for prosecutors to file lawsuits against town judges.

"I've never seen it done," said Thomas W. Baldwin, executive director of the New York State Magistrates Association and a town judge in Cairo, Greene County.

In the meantime, with DeMarco's consent, Green's office has referred eight misdemeanor DWI cases that normally would have gone to DeMarco's court directly to grand juries, which typically consider only allegations of more serious felonies.

The grand juries have handed up misdemeanor charges in every case, and the cases have been assigned to a County Court judge or a state Supreme Court justice instead of being returned to DeMarco.

"As much as I hate to use our resources in that fashion, I can't have a court operating where no one gets convicted of driving while intoxicated," Green said. "We just can't allow every person who is charged with DWI to get off. It's too serious."

Brighton lawyer Edward L. Fiandach, who specializes in representing drunken drivers and is dean of the National College for DUI Defense Inc., said Green's office is trying an end run around rules that restrict the prosecution's appeals of judges' rulings on evidence.

"It is certainly an oblique way for the District Attorney's Office to try to accomplish an aim," he said. "This is an extraordinary means to try to appeal a holding. To a certain extent, I think it's coercive."

Fiandach also suggested that a solution to DeMarco's ruling might be to transfer calibration duties from the state to individual counties so local technicians are readily available to testify about the breath-testing devices' accuracy.

Green, however, estimated it would cost Monroe County up to $1 million a year to take over calibration duties. That, he said, would present a dilemma for the county.

"I think it's basically a choice of whether we find $1 million that we don't have or we let drunk drivers drive with impunity," Green said.

The controversy began in December when DeMarco presided over a nonjury trial for a man who was charged with driving while intoxicated after he was stopped at a traffic checkpoint. Defense lawyer Gary Muldoon argued that the prosecution shouldn't be allowed to submit documents attesting to the accuracy of breath-testing devices without offering them through a witness who could be questioned about the way the devices were calibrated.

The prosecution argued that it couldn't establish the reliability of the devices without calling a witness from the Division of Criminal Justice Services. It also noted that previous rulings by appellate courts have upheld the use of the documents without accompanying testimony.

DeMarco ruled that submitting the documents alone without supporting testimony deprived the defendant of his right to challenge evidence. He dismissed the misdemeanor charge of driving while intoxicated because there was a lack of evidence. The judge, however, convicted the driver of driving while his ability was impaired.

The judge issued similar rulings in three cases in June, July and August. In two of the cases, the defendants were convicted after nonjury trials of the lesser charge of driving while their ability was impaired; in the third case, the defendant pleaded guilty to the lesser charge.

Muldoon said he's disturbed that the District Attorney's Office is seeking a declaratory judgment against DeMarco.

"I believe that a declaratory judgment is an improper vehicle to review the judge's trial or pretrial rulings," Muldoon said. "I can tell you that in my book on state criminal procedure, the words 'declaratory judgment' do not appear a single time."

Muldoon also said prosecutors shouldn't be attempting to bypass DeMarco by taking misdemeanor cases to grand juries.

"In my opinion, this is an attempt at judicial forum shopping," he said. "It could result in an overburdening of the grand jury system, as well as the superior courts of Monroe County."

DWI foe Tracey Holbrook, however, said DeMarco's ruling should be challenged.

"We have judges all over Monroe County who have maybe a slightly different take on what is going on, and their decisions may not be consistent with others, but this seems too extreme and irresponsible," said Holbrook, chapter administrator for the western affiliate of Mothers Against Drunk Driving, which covers 16 counties in western New York.

Holbrook, whose parents were gravely injured in 1997 near Albany when a drunken driver hit their car and killed a couple traveling with them, said she fears drunken drivers will be treated too lightly because of DeMarco's rulings and will get behind the wheel again.

This is cache, read story here