Kolb breathalyzer hearing to feature jail recordings disclosed by 13 WHAM investigation

Assemblyman Brian Kolb outside Victor Town Court Thursday. A hearing next month will feature jail recordings disclosed in a 13WHAM Investigation. He is trying to challenge the breathalyzer test results that allegedly found a blood alcohol level of two times the legal limit (WHAM photo)

(WHAM) - Assemblyman Brian Kolb was arrested for DWI on New Year's Eve after a crash at the end of his driveway in Victor. The sheriff's report said he had glassy, blood shot eyes, slurred speech and was unsteady on his feet.

Yet his attorney said video taken from four different cameras inside the Ontario County Jail show the opposite - a man walking in, under control.

"I don't want to try the case in the press," said Chris Schiano. "Let's just say there are issues."

The jail recordings first disclosed in a 13WHAM investigation are now taking center stage in the DWI case. A judge has granted a hearing to determine whether key evidence - in this case the breathalyzer - can be used at his trial. 13WHAM has not been provided a copy of the footage but confirmed its existence in February.

One angle is from a stationary camera inside the Breath Test Operator room - called BTO. The camera is supposed to be used for security monitoring and not for recording. However, it was recording - and not only on the night of Kolb's arrest.

The Ontario County sheriff and district attorney confirmed there are up to 50 recordings of breath tests discovered. Earlier cases - dating back as far as three years - were taped over. That evidence was destroyed and never turned over to defense attorneys as required by law.

"It is something we are owning up to. We are not hiding this. We are investigating," said Sheriff Kevin Henderson back in February.

The recordings were not used for prosecutions.

Outside a court appearance Thursday, Kolb's attorney said the video shows the Datamaster breath test was not properly given. He also says the machine was not properly maintained.

"You follow procedures for a reason: To ensure there's a valid test," he said. "If you don't follow the procedures, it shouldn't be a valid test."

Schiano will argue at a hearing next month that the results showing a blood alcohol level of two times the legal limit be tossed.

The special prosecutor sees it differently.

"It's pretty standard," said Todd Casella, district attorney for Yates County. "Any time there is a breath test or result, defendants try to get it suppressed because if the evidence comes in, it can be pretty damning."

The hearing will also cover whether was probable cause for arrest and administering the field sobriety test.

MORE: Special prosecutor appointed in Kolb DWI case; new focus on state-issued SUV involved

MORE: Court docs: Kolb had 4-5 cocktails, but blamed his wife for the New Year's Eve crash

The case has been on hold since March because of COVID-19. No trial date has been set because some restrictions remain in place.

Kolb began serving the 131st District in 2000. The district contains Ontario and parts of Seneca counties. He eventually rose to minority leader. In February, he announced he would not be running for re-election.