People v. Amores

• Decision Date: 14 April 1989
• Docket Number: AP-3
• Parties: The PEOPLE of the State of New York v. Lucio AMORES, Defendant
• Court: New York City Court

Page 695

541 N.Y.S.2d 695

143 Misc.2d 527

The PEOPLE of the State of New York v. Lucio AMORES, Defendant.

Criminal Court of the City of New York,

Bronx County, Part AP-3.

April 14, 1989.

Robert M. Baum, Legal Aid Soc., Brooklyn, (Elizabeth Schiff, New York City, of counsel), for defendant.

Robert Johnson, Dist. Atty. (Dawn M. Florio, of counsel), for plaintiff.

ELI LAZARUS, Judge:

The defendant, Lucio Amores, is charged with driving while under the influence of alcohol, violations of the Vehicle and Traffic Law §§ 1192.2 and 1192.3. His motion pursuant to CPL §§ 710.20(3) and 710.40 for suppression of statements, or in the alternative, directing that a hearing be held as to the admissibility of such statements is granted to the extent that a Huntley hearing will be conducted. His motion pursuant to CPL § 710.20(5) directing the suppression of breath test results, or alternatively, dismissal of the charge as facially insufficient pursuant to CPL §§ 100.40 and 170.30 is denied for the following reasons:

I

Breath to Blood Conversion Ratio

The first branch of defendant's motion to suppress the results of the breathalyzer test rests upon the proposition that the amount of alcohol in the breath may be an overestimation of the amount of alcohol in the blood. Defendant contends that since V.T.L. § 1192(2) liability is for the level of alcohol in the blood, he should be given the benefit of any possibility of an overestimated blood alcohol reading.

Although defendant raises this issue, neither the defense nor the People address the issue in any detail in their motion papers. As a result, the court has conducted its own independent research and relies upon the studies of researchers in the field as they were reported in Erwin, Defense of Drunk Driving Cases, Sec. 1802, 3rd ed. 1989.

To convert the percentage of alcohol in the breath ("BAC") into a percentage of alcohol in the blood ("BAC"), a factor of 2100 to one is used. This is based on the theory that approximately 2100 milliliters of breath would contain the same quantity of alcohol as one milliliter of blood. The 2100:1 conversion ration is an average for the population at large. As with any other average, this ratio is based upon the cumulative ratios of a population sample divided by the members of the population. Thus some members of the population will have a higher than average ratio, while others will have a lower than average ratio. To be a statistically reliable predictor, most members of the population must fall on or close to the average. For those individuals with lower than average ratios, their BAC will be overstated. Therefore, it is critical that the average does not overestimate BAC levels for a large number of the population, and that the overestimate is not statistically significant.

One recent study ¹ indicates that the actual average conversion ratio for the population is 2280:1; ² the standard deviation from the average is ± 241.5; and the range of ratios is estimated at 1100:1 to 3400:1. As a result, 68% of the population will have a ratio greater than 2038.5:1; 95% of the population will have a ratio greater than 1797:1; 99.7% of the population will have a ratio greater than 1555.5:1; and 0% to a maximum 0.3% of the population will have a ratio which falls between 1100:1 to 1555.5:1. ³

Applying this data to the defendant's estimated BAC of .16% yields the following probabilities: defendant has a 68% probability that his BAC was greater than .155%; a 95% probability of greater than .137%; a 99.7% probability of greater than .119%; and a 0% to 0.3% probability that his BAC ranged somewhere between .084% and .119%. ⁴

Thus, there is a possibility that anywhere from 0 to 3 people in 1000 who register a .16% breathalyzer reading would have a blood alcohol concentration below the .10% limit specified by V.T.L. § 1192(2). This court must therefore decide whether this statistical probability of unreliability of less than 3 chances in 1000 is sufficient to declare the breathalyzer results unreliable and inadmissible. I conclude that the point raised by defendant is really an issue for trial which may be used to attack the burden of proof required of the People, but is not adequate reason to declare the breathalyzer result unreliable. To hold otherwise would necessitate ignoring the Court of Appeals clear and well-settled declaration that the breathalyzer is a scientifically reliable instrument capable of producing an accurate measurement of a suspect's blood alcohol content ( People v. Alvarez, 70 N.Y.2d 375, 380, 521 N.Y.S.2d 212, 515 N.E.2d 898; People v. Mertz, 68 N.Y.2d 136, 148, 506 N.Y.S.2d 290, 497 N.E.2d 657; People v. Freeland, 68 N.Y.2d 699, 506 N.Y.S.2d 306, 497 N.E.2d 673; People v. Gower, 42 N.Y.2d 117, 397 N.Y.S.2d 368, 366 N.E.2d 69).

Further, a breathalyzer reading above the statutory limit is not a per se violation but is merely presumptive evidence which permits but does not require the trier of fact to find in accordance with the presumed fact. (People v. Mertz, supra). Thus, the court has recognized an allowance for error in breathalyzer results, and has given the defendant the benefit of that allowance. It is because of this, proof of a breathalyzer reading of .10% or more alone is not enough to establish a prima facie violation of V.T.L. § 1192(2) but must be combined with other indicia of intoxication (id.). Accordingly, this branch of defendant's motion is denied.

II

Integrity of the Chemical Solution

The second branch of defendant's motion to suppress breathalyzer results rests upon allegations that the chemical solutions used in breathalyzer machines in New York are currently the subject of scrutiny. This allegation rests upon the findings of a hundred page report from the Office of Investigations, Department of the Auditor General, Commonwealth of Pennsylvania entitled, "Allegations Concerning False Billing; Educational Systems, Inc." Educational Systems, Inc. is a division of Systems Innovations Inc. (hereinafter SII). Although the bulk of the report deals with the bidding process, billing procedures and service problems that the Commonwealth of Pennsylvania has experienced with SII, the report also raises serious questions regarding the integrity of some chemical solutions which may be in use in New York. The defense alleges that because of the Pennsylvania findings, there can be no presumption of consistency between any batch of solutions. Thus, their use casts a cloud of unreliability over the test results. The issue presented is whether these allegations of unreliability are adequate grounds to move for pre-trial suppression.

To begin with, the defendant does not meet his threshold burden under CPL § 710.60. By statute, a pre-trial hearing may be granted only where the motion papers contain sworn allegations of fact supporting the grounds for the motion. Although the defendant's papers allege some solutions have come under scrutiny, this speculation is not enough to support the proposition that the solution used in defendant's test was unreliable (see, People v. Garneau, 120 A.D.2d 112, 507 N.Y.S.2d 931).

Moreover, a motion pursuant to CPL § 710.20 is misapplied. There are six specific statutory grounds for pre-trial suppression of evidence encompassed by Article 710 of the Criminal Procedure Law. An allegation that breathalyzer test results may be unreliable is not one of these six grounds (People v. Hicks, 134 Misc.2d 594, 511 N.Y.S.2d 1003; People v. Tyree, 75 Misc.2d 912, 349 N.Y.S.2d 580; see also, People v. Pantaleo, 141 Misc.2d 251, 536 N.Y.S.2d 369), but such allegations may be made at trial to attack the proper foundation the People must present before the evidence may be admitted or to contest the inference that the test results are accurate (see, People v. Freeland, 68 N.Y.2d 699, 506 N.Y.S.2d 306, 497 N.E.2d 673; People v. Mertz, 68 N.Y.2d 136, 506 N.Y.S.2d 290, 497 N.E.2d 657).

Despite these legislative confines, some courts have held pre-trial suppression hearings upon constitutional grounds that the conditions of the test violated due process principles. For example, lower courts have conducted hearings and suppressed test results for failure to preserve sample ampoules or for failure to provide counsel prior to defendant's waiver to refuse to take tests. However, the Court of Appeals has reversed such suppression on various grounds (see, People v. Alvarez, 70 N.Y.2d 375, 521 N.Y.S.2d 212, 515 N.E.2d 898; People v. Shaw, 72 N.Y.2d 1032, 534 N.Y.S.2d 929, 531 N.E.2d 650; People v. Shepherd, 118 Misc.2d 365, 460 N.Y.S.2d 722, affd. 130 Misc.2d 284, 496 N.Y.S.2d 205, reversed 68 N.Y.2d 841, 508 N.Y.S.2d 173, 500 N.E.2d 871).

Recently, the court in People v. Pantaleo, supra, responding to the identical issue presented before this court, denied a CPL § 710 suppression hearing but ordered a hearing on the admissibility of evidence be conducted by the trial judge prior to jury selection. The court found such a hearing necessary to eliminate prejudice a defendant would encounter when the People in their opening statement refer to breathalyzer test results that may later prove to be inadmissible. Following Pantaleo where extensive pre-trial evidentiary hearings have been conducted, opposite conclusions have been reached possibly due to the difference in the allocations of burdens of proof. One court held the breathalyzer result admissible (People v. Urquhart, Docket No. 8801463, City Court, Rochester, January 23, 1989, Walz, J., unpublished...