People v. Donaldson
| Decision Date | 18 February 1971 |
| Citation | 36 A.D.2d 37,319 N.Y.S.2d 172 |
| Parties | PEOPLE of the State of New York, Respondent, v. George A. DONALDSON, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Richard C. Mitchell, Jr., Oswego, for appellant.
Eugene F. Sullivan, Jr., Dist. Atty., Oswego, for respondent (John Michael Mowry, Mexico, of counsel).
Before MARSH, J.P., and GABRIELLI, MOULE, and HENRY, JJ.
In reviewing a judgment of the County Court, Oswego County, rendered July 9, 1970 upon a jury verdict convicting defendant of operating a motor vehicle which in an intoxicated condition, as a felony, we are called upon to determine the admissibility of the results of a bloodalcohol test as measured by an apparatus known as a 'Breathalyzer'.
Travelling south on route 57 in the Town of Schroeppel on the evening of February 8, 1970, defendant operated his car partially in the northbound lane, forcing an oncoming vehicle being operated by Trooper Frederick Klein, to pull off the highway. Klein turned his troop car around, followed defendant for approximately one half mile and observed that defendant crossed into the northbound lane on several occasions and upon returning to his southbound lane, he would drive to the extreme right hand side thereof and onto the shoulder. The defendant stopped after being signaled by the trooper who testified that in talking to defendant he noticed that his speech was slurred, his eyes were bloodshot and watery, that there was an odor of alcohol on his breath and that in his opinion defendant was intoxicated. He was placed under arrest and taken to the State Police Barracks at Fulton where he was asked to take a sobriety test, to which defendant consented and, within 30 minutes of his arrest, he was given a Breathalyzer test by Trooper Richard Dempsey. The latter also testified that prior to administering the test, he noticed that defendant's speech was slurred, his eyes were bloodshot, his breath smelled of alcohol and in his opinion defendant appeared to be intoxicated. Trooper Dempsey also testified that the reading on the machine showed '25/100's of one percent of blood alcohol content'. On the other hand, defendant testified that at the time of his arrest he was fatigued from a lack of sleep and that he had consumed but three or four bottles of beer on that day. A barmaid-waitress at his last stop before the arrest, testified that in her opinion he was not intoxicated.
Defendant's main thrust on this appeal is his claim that the results of the test were improperly received, asserting that there was no showing that the Breathalyzer is scientifically reliable and that there was no proof that the test was properly conducted by a qualified operator in accordance with required rules and regulations.
In order to resolve these questions, we first take note of those portions of the Vehicle and Traffic Law which were in effect at the time involved herein. In pertinent part, section 1192(2) provided that:
Section 1192(3) provided that:
And section 1194 thereof, insofar as here applicable provided that:
It is readily apparent that defendant's manner of operating his car as well as his appearance and condition, afforded the officer 'reasonable grounds to believe such person to have been driving in an intoxicated condition'. In these circumstances there was justification for the request that defendant submit to a chemical test.
In approaching the question of the admissibility of the results of the chemical test we examine the history and experience of its use as well as its methodology and manner of operation. The Breathalyzer has been in public use since 1954 and has been widely accepted and adopted by law enforcement agencies for use in testing blood-alcohol content. It operates on the firmly established principle that at normal body temperature the concentration of alcohol in the blood circulating through the lungs is 2,100 times greater than in the air discharged from the lungs (4 Gray, Attorney's Textbook of Medicine, § 133.73(1)). The apparatus is a semi-automatic analyzer designed to test a blood-alcohol percentage present in any breath sample. Scientifically, the Breathalyzer wastes all but the last portion of a long exhalation, trapping a measured volume which is then forced through a reagent and is ultimately photometrically measured resulting in a calculated reading of the subject's blood-alcohol percentage. Studies have shown that this device is considered to be 'fail safe' and that as a general rule its readings are slightly lower than those obtained in a corresponding blood test; and any slight error caused either by mechanical defect or operator fault will usually produce lower rather than higher readings (45 North Carolina Law Review 34, 56).
Addressing ourselves to defendant's first assignment of error in this regard, we take note of an absence of any appellate determinations dealing with the scientific reliability of apparatus used to analyze one's breath in order to determine the percentage of alcohol in the blood. In noting its long usage and wide acceptance as an instrument for making a chemical analysis of alcohol in the blood, we are led to agree with the rationale in People v. Morris, 63 Misc.2d 124, 126--127, 311 N.Y.S.2d 53, 55--56, that it is no longer necessary to require expert testimony to establish the...
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...in general is no longer open to question (People v. Gower, 42 N.Y.2d 117, 397 N.Y.S.2d 368, 366 N.E.2d 69; People v. Donaldson, 36 A.D.2d 37, 319 N.Y.S.2d 172), there must still be either proper foundation testimony under CPLR 4518(a) or a proper CPLR 4518(c) certificate to establish that t......
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