People v. Darbouze

• Decision Date: 20 January 1984
• Citation: 471 N.Y.S.2d 993,122 Misc.2d 654
• Parties: The PEOPLE of the State of New York v. Patrick DARBOUZE, Defendant.
• Court: New York City Court

Page 993

471 N.Y.S.2d 993

122 Misc.2d 654

The PEOPLE of the State of New York v. Patrick DARBOUZE, Defendant.

Criminal Court of the City of New York,

New York County.

Jan. 20, 1984.

Robert M. Morgenthau, Dist. Atty., New York County (Michael Kitsis, New York City, of counsel), for the People.

Dennis E.A. Lynch, Nyack, for defendant.

WILLIAM DAVIS, Judge:

On June 4, 1983, in the City of New York, the defendant, Patrick Darbouze, was arrested and charged, inter alia, with driving while intoxicated, in violation of Vehicle and Traffic Law § 1192(2). At that time, the defendant was taken into custody and submitted to a breathalyzer test. As a result of the test, the defendant was alleged to have a blood alcohol content of .20%. No effort was made to preserve the original air sample or a second original air sample of the defendant's breath for his independent testing.

Defendant now moves to suppress the results of the breathalyzer test, based on the contentions that the failure of the People to preserve a sample of defendant's breath is a violation of the Vehicle and Traffic Law § 1194(8), as well as a violation A hearing was ordered, although this relief was not requested by counsel, on the issue of preserving the original air sample. The court is well aware that this is a quickly developing area of the law which merited more substantial review than a mere determination on the papers. Inasmuch as the People had already represented that no second original ampoule had been preserved, argument proceeded from that point with counsel commenting on the impact of United States v. Bryant, 439 F.2d 642 (D.C.Cir.1971), whether suppression should apply retroactively, prospectively or even on a delayed basis; the impact on police proceedings; scientific analysis supporting the proposition that preservation of a second ampoule could result in credible evidence introducible at trial.

of defendant's right to due process under the Federal and State Constitutions.

FINDINGS

There is only one basic issue with respect to this inquiry. That is, do the police have a duty to preserve a sample of the defendant's breath for his independent testing, and, if they do have such a duty and fail to preserve the sample, must the evidence be suppressed.

It is a settled principle that the People can constitutionally test the blood alcohol content of an individual accused of driving while intoxicated. The controlling statute (VTL § 1192[2] ) clearly states that "no person shall operate a motor vehicle while he has .10 of one per centum or more by weight of alcohol in his blood as shown by chemical analysis of his blood, breath, urine or saliva..." Thus, once the chemical test is performed on the accused pursuant to VTL § 1194, a finding that the accused has a blood alcohol content of .10 per centum or more is per se evidence of guilt. There is no substitute for the chemical test, which is a vital part of the People's proof. (People v. Molina, 121 Misc.2d 483, 468 N.Y.S.2d 551.)

The issue of preservation of evidence was clearly determined by the United States Court of Appeals for the District of Columbia in United States v. Bryant, 439 F.2d 642 (D.C.Cir.1971). Therein the court stated that the fact that certain evidence might be significantly favorable to the accused is enough to bring such cases within constitutional concern. The court went on to say that the purpose of the duty to disclose is not simply to correct an imbalance of advantage, whereby the prosecution may surprise the defense at trial with new evidence; rather, it is also to make the trial a search for truth informed by all relevant material, much of which, because of imbalance in investigative resources, will be exclusively in the hands of the government. (Bryant, supra at 648.)

Applying that decision to the present case, it is clear that the results of the breathalyzer test are clearly within the control of the government. In most cases the police officers transport the defendant to the stationhouse and, with the consent of the defendant, take a sample of his breath by passing it through a breathalyzer apparatus. At this time, the defendant is duly informed that by statute the results of the breathalyzer test may, and in all probability will, be used against him. The sample is then destroyed, and the defendant never has a chance to examine it himself or to have others of his choice examine it.

The People argue that there is no duty to preserve the original sample or a second sample for the defendant's independent testing, for three reasons. First, it is alleged that subsequent retesting or chemical analysis of the test ampoules, no matter how preserved, provides no acceptable scientific relationship to the accuracy or validity of the original test results (People v. LePree, 105 Misc.2d 1066, at 1071, 430 N.Y.S.2d 778). Second, they allege that the destruction of the evidence provided by the breathalyzer results is not a violation of the United States Constitution since due process requires only the disclosure of pre-existing exculpatory evidence. Additionally the defendant's mere allegation that the evidence not disclosed would be favorable to his case does not necessarily establish this fact (People v. Rich, 118 Misc.2d 1057, 462 N.Y.S.2d 163). Third, that destruction of the ampoules and their contents was neither malicious nor in bad...