People v. Drumm
| Citation | 122 Misc.2d 1051,472 N.Y.S.2d 989 |
| Parties | The PEOPLE of the State of New York v. Donald K. DRUMM. |
| Decision Date | 03 February 1984 |
| Court | New York County Court |
The Defendant has made a motion, pursuant to Criminal Procedure Law § 330.30, subdivision 1, to set aside a jury verdict convicting him of violations of Vehicle and Traffic Law § 1192, subdivisions 2 and 3, as felonies. This motion is primarily addressed to the Court's decision, during trial, to admit the results of a breath test, administered on a CMI intoxilyzer, Model 4011AS, and which showed the presence of .20 of one percentum of alcohol in the Defendant's blood within two hours of his arrest. More particularly, the Defendant contends that the People failed to establish a sufficient foundation that the instrument was in proper working condition, and, therefore, the admission of the results, into evidence, was either error or the jury's verdict was against the weight of the evidence.
The Defendant was arrested during the early morning hours of February 27, 1983 by the Monroe County Sheriff's Office, and, as aforesaid, was administered a breath test by means of a CMI intoxilyzer, Model 4011AS. The testimony, produced at the trial, disclosed this law enforcement agency had received several intoxilyzers from the New York State Department of Criminal Justice Services during the latter part of 1979. Although they were used for a period of time thereafter, for the purposes of administering breath tests to persons arrested for driving while intoxicated, their use was discontinued in June 1982 pursuant to a request of the District Attorney's Office. Subsequently, these intoxilyzers were reactivated in February 1983, but, again, discontinued in March 1983, for policy reasons. Thus, the Defendant was arrested and administered a breath test during the relatively short period of time that the intoxilyzers were utilized by this particular police agency.
In cases involving the breathalyzer, it is no longer required that the People introduce evidence establishing the scientific reliability of the instrument as a foundation for the admissibility of the results of any test. See People v. Donaldson 36 A.D.2d 37, 319 N.Y.S.2d 172 (4th Dept., 1971). There is no appellate authority, however, whereby judicial recognition of reliability has been accorded to other breath testing devices. Accordingly, the People, in this case, called, as an expert witness, the Chief Toxicologist for the State of Ohio Department of Health, who is in charge of the Alcohol Testing Program, and also serves as a forensic consultant. This witness testified, at length, concerning the operation of the intoxilyzer 4011 series, and rendered an opinion that the result of a test performed on such an instrument, if in proper working order, would be reliable to a scientific certainty. In addition, the Technical Training Supervisor for the New York State Department of Criminal Justice Services testified concerning the use, maintenance and calibration of intoxilyzers.
A permit was introduced into evidence, issued by the New York State Department of Health, certifying that the deputy sheriff, who administered the intoxilyzer test in this case, was qualified and competent to conduct and supervise chemical analyses of a person's breath. Accordingly, the record contains presumptive evidence that the examination was properly given. See Vehicle and Traffic Law § 1194, subdivision 9. Furthermore, this officer testified that immediately following the test, administered to the Defendant, the instrument was placed through a purge cycle, and thereafter, a test, involving a simulator solution, was performed. In essence, this latter test involved checking the accuracy of the instrument against a standard alcohol solution of a known value, and resulted in an acceptable tolerance deviation of .01 percent. The People also introduced into evidence a record of weekly tests performed upon the intoxilyzer, which the Court found to be properly certified as a business record. See CPLR 4518(a) and (c). This record disclosed that the instrument was tested on February 14 and February 21, 1983, by the use of a standard solution, which contained a known alcoholic content, and the results were consistent.
The Court sustained an objection to the introduction of another record, entitled "Certification of Calibration" because the certification accompanying the record failed to properly qualify it as a business record. The record in question related to a calibration performed on February 28, 1983 by the Division of Criminal Justice Services, Bureau for Municipal Police, and was addressed "To Whom it May Concern". The accompanying certification recited that the record "... was made in the regular course of business of the New York State Bureau for Municipal Police at the time such calibration was performed, and further that it was the regular course of the Bureau for Municipal Police's business to report the result of said instrument's calibration to the police agency that requested it (emphasis added)". There was nothing contained in this certification to indicate that it was the regular course of the business, of the Bureau for Municipal Police, "to make" the record, as distinguished from the regular course of business to report the result of a specific instrument's calibration to the law enforcement agency, which has requested it. CPLR 4518(a), People v. Gower 42 N.Y.2d 117, 397 N.Y.S.2d 368, 366 N.E.2d 69 (1977), cf. People v. Farrell 58 N.Y.2d 637, 458 N.Y.S.2d 514, 444 N.E.2d 978 (1982). Otherwise stated, in this Court's opinion, the certification only satisfied half the test because it failed to assert that the participants, who produced the record, were acting within the course of regular business conduct of the Bureau for Municipal Police. See In the Matter of Leon R.R. 48 N.Y.2d 117, 421 N.Y.S.2d 863, 397 N.E.2d 374 (1979). In addition, this Court declined to rule that the proposed evidence came within some public document exception to the hearsay rule. Contra People v. Hoats 102 Misc.2d 1004, 425 N.Y.S.2d 497 (1980).
The Defendant contends that the failure of the People to succeed in having this "Certification of Calibration" admitted into evidence resulted in the proof being insufficient that the instrument was in proper working condition on February 27, 1983, and, consequently, the lack of a foundation for the admissibility of the test results. In People v. Donaldson, supra, the court, after ruling that expert testimony would no longer be necessary to establish reliability of the breathalyzer, observed that several facts were established in connection with the reliability of the particular test, in question, including "... ample proof that the instrument was properly calibrated...". Subsequently, some courts interpreted...
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