People v. Farrell
| Decision Date | 11 March 1982 |
| Citation | 450 N.Y.S.2d 439,87 A.D.2d 690 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Robert J. FARRELL, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Mulvey & Winn, Ithaca (Robert C. Mulvey, Ithaca, of counsel) for appellant. Joseph Joch, Tompkins County Dist. Atty., Ithaca (Michael R. Berg, Ithaca, of counsel) for respondent.
Appeal from a judgment of the County Court of Tompkins County (Dean, J.), rendered November 3, 1980, upon a verdict convicting defendant of operating a motor vehicle while under the influence of alcohol and operating a motor vehicle while ability is impaired. Judgment affirmed. No opinion.
KANE, J. P., and MAIN and WEISS, JJ., concur.
A breathalyzer test, administered to defendant within two hours of an automobile accident in which he was involved, indicated .22% alcohol in his blood. His motion to inspect the test ampoules used in the breathalyzer was denied. During argument of that motion he asked, but was not permitted, to present an expert witness as to the materiality of re-examining the ampoules. He was subsequently convicted of, among other things, driving while intoxicated as a felony. In our view, foreclosing a defendant from even making a record as to the feasibility of retesting the ampoules employed is an error which calls for comment. Due process requires that a defendant be allowed to marshall possible defenses. Given the great weight juries are apt to accord the scientifically sanctioned results of a breathalyzer examination, a showing that either the test or reference ampoule was defective could have significant defense consequences. Fairness demands that a defendant be afforded the opportunity to make that showing, for an attack claiming that the ampoules malfunctioned may very well be the only real defense one facing a driving while intoxicated charge can offer. Precluding a defendant from doing so enables a breathalyzer machine to become a mechanistic witness, immune from cross-examination or challenge. Such immunity is a privilege never extended to the most deserving human witness. To insure that opportunity, the test and reference ampoules should be retained by the police for a reasonable time so that they may be made available for examination by the defendant (cf. People v. Hitch, 12 Cal.3rd 641, 117 Cal.Rptr. 9, 527 P.2d 361),...
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...admitted as evidence, the claimed error is harmless in view of the other evidence sufficient to establish guilt (see People v. Farrell, 87 A.D.2d 690, 450 N.Y.S.2d 439 YESAWICH, J., concurring). Defendant's erratic driving and watery, bloodshot eyes and his admission of drinking beer, coupl......
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