People v. Cialino, 2006RI007857

• Decision Date: 06 February 2007
• Docket Number: 2006RI007857
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. CHRISTOPHER S. CIALINO, Defendant.
• Court: New York Criminal Court

14 Misc.3d 999

831 N.Y.S.2d 680

2007 NY Slip Op 27042

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. CHRISTOPHER S. CIALINO, Defendant.

2006RI007857

Criminal Court of the City of New York, Richmond County.

February 6, 2007.

Raymond L. Rodriguez, Staten Island, for defendant.

Daniel M. Donovan, Jr., District Attorney (Joseb S. Gim of counsel), for plaintiff.

OPINION OF THE COURT

MATTHEW A. SCIARRINO, JR., J.

In an apparent case of first impression in this state, this court holds that the source codes for the Intoxilyzer 5000 are not discoverable.

The defendant is charged with operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law § 1192 [2], [3]). In addition to items contemplated by CPL 240.20 (1), he moves for an order directing the People to produce the source code¹ of the Intoxilyzer 5000 used in this case, "reports concerning the operation and maintenance of the machine, simulator solution analysis, certificate of calibration, device manuals, maintenance manuals and schematics, changes made to the device and tollbooth video."

Facts

The People concede that some of the items sought by the defendant are discoverable. Although the defendant concedes that the Intoxilyzer 5000 is an approved device for measuring blood alcohol content, he contends that there "is no way of telling just what software version must be loaded to meet the criteria for approval." The People argue: (a) the source code is not discoverable; (b) the issue of reliability of the Intoxilyzer 5000 has been foreclosed by the Legislature and courts; (c) the source code does not affect the reliability of the Intoxilyzer 5000; and (d) the People do not have actual or constructive possession of the source code.

Discussion

According to 2-21 Defense of Drunk Driving Cases: Criminal, Civil § 21.06 (Matthew Bender & Co. 2007):

"The Intoxilyzer 5000 has undergone a number of changes since its introduction in 1983. Accordingly, the so-called `Intoxilyzer 5000' is not a single instrument, but a series of instruments, all called the Intoxilyzer 5000, but with significant differences. Changes have been made to increase stability, increase specificity (reduce potential of effects due to interfering substances), increase accuracy (especially at low breath-alcohol concentrations (BrACs)), and increase data handling capability and remote access."

It is an undisputed fact that the People do not actually or constructively possess the source code. The defendant's reliance on State v Muldowny (871 So 2d 911 [Fla 5th Dist Ct App 2004]) is inapposite. In Muldowny, the Florida court imposed sanctions against the prosecutor for not producing the operator's manual, maintenance manual, and schematic for the Intoxilyzer 5000. However, in Moe v State (944 So 2d 1096 [Fla 5th Dist Ct App 2006], reh denied Jan. 8, 2007), the same court that decided Muldowny, held that the defendant was not entitled to the Intoxilyzer 5000 source code because the state did not possess it, and because it was the property of a corporation that invoked statutory and commonlaw privileges protecting the code from disclosure, thereby making it unobtainable. The court in Moe pointed out that those facts were not contemplated in Muldowny.

This court has found no case law holding that a defendant is entitled to the Intoxilyzer 5000 source code. Other courts have, however, found that it is not discoverable.²

This court holds that the public policy of this state recognizes that the Intoxilyzer 5000 is a reliable machine, included in the Department of Health schedule, satisfying its criteria for reliability (10 NYCRR 59.4; see People v Summa, 140 Misc 2d 763 [Suffolk Dist Ct 1988]; People v Gallagher, 132 Misc 2d 195 [Suffolk Dist Ct 1986]). Absent evidence to the contrary, such instruments are sufficiently reliable to permit the...