People v. Hochheimer

• Decision Date: 23 May 1983
• Citation: 463 N.Y.S.2d 704,119 Misc.2d 344
• Parties: The PEOPLE of the State of New York, v. Richard HOCHHEIMER, Defendant.
• Court: New York Supreme Court

Page 704

463 N.Y.S.2d 704

119 Misc.2d 344

The PEOPLE of the State of New York, v. Richard HOCHHEIMER, Defendant.

Supreme Court, Monroe County.

May 23, 1983.

Donald O. Chesworth, Jr., Monroe County Dist. Atty., Rochester (Michael Garner, Rochester, of counsel), for the People.

Crimi & Crimi, Rochester (Charles F. Crimi, Rochester, of counsel), for defendant.

Criminal Defense League, Rochester (Michael T. DiPrima, David A. Murante, Norman A. Palmiere, and Dominic Pellegrino, Rochester, on argument and brief), amicus curiae.

DECISION

DAVID O. BOEHM, Justice.

The defendant moves to suppress the results of a breath test on a number of grounds. The principle contention raised is that the breathalyzer model used in this case (i.e., Smith and Wesson Breathalyzer Model 900A) is unreliable. This contention is based on the recent discovery that the instrument is susceptible to radio frequency interference. In addition, the defendant argues that the test results cannot be used in the prosecution for the Penal Law charges against him because his consent to submit to the breath test was not voluntary, and further, because he was not given Miranda warnings, advised that the test results could be used in a prosecution for violations of the Penal Law, nor permitted to obtain the advice of an attorney prior to the administration of the test.

At about 3:30 p.m. on April 21, 1982 the defendant was arrested for driving while intoxicated after the car in which he was driving struck two school children and a school crossing guard. The defendant was brought to the Irondequoit Police Department where he asked for an attorney. The defendant was permitted to use a telephone, but his attempts to contact an attorney were unsuccessful. After the defendant was read the warnings required under section 1194 of the Vehicle and Traffic Law, he agreed to submit to a breath test. He was tested by means of a Smith and Wesson Breathalyzer Model 900A, and the test results showed a blood-alcohol content of .15 percent. Subsequently, the defendant was indicted for assault in the second and third degrees, operating a motor vehicle while under the influence of alcohol, failure to obey a traffic control device, and operating a motor vehicle in a no-passing zone.

The problem of radio frequency interference affecting Breathalyzer Model 900A was addressed by the manufacturer, Smith and Wesson, in a consumer advisory dated September 10, 1982. The susceptibility of breathalyzers to radio interference was initially brought to the attention of Smith and Wesson with regard to its Model 1000, but subsequent testing of the earlier models (i.e. 900 and 900A) indicated that they, too, "may be affected in an unpredictable manner by various frequencies and power levels." In its advisory, Smith and Wesson further admitted that "the extent of sensitivity to particular frequencies and particular power levels will vary from instrument to instrument."

Smith and Wesson recommended that all of their models be tested to determine if radio interference might lead to inaccurate test results. Two tests were set forth in detail in the advisory: one to determine the affect of background radio frequency energy, such as commercial radio and television broadcasts; and, the other to determine the affect of a law enforcement agency's own radio transmissions. On November 5, 1982, the Irondequoit Police Department conducted these tests on the same Model 900A breathalyzer with which the defendant had been tested on April 21, 1982, when arrested. The results of those tests were all within the tolerances prescribed by the New York State Department of Health (see 10 NYCRR § 59.5). The defendant argues, however, that the tests conducted by the Irondequoit Police Department over six months after he submitted to the breath test were, "not sufficiently connected in time, occurrence, conditions as to people, things and other sources of radio frequency interference, to be reliable enough to be admissible to demonstrate the freedom of the machine from radio frequency interference" at the date and time his test was taken.

In opposing this motion, the People draw this court's attention to the tests conducted by the Irondequoit Police Department on the breathalyzer in question. The People point out that the instrument was located in the lock-up area of the Irondequoit Police Department when the defendant submitted to the breath test, that it has been in that location since that time, and that it was in that same location when the tests recommended by Smith and Wesson were conducted. Further, the People present evidence of similar tests conducted by other law enforcement agencies in Monroe County on their own 900A's which likewise failed to disclose any deviation occasioned by radio interference. In addition, the People have submitted simulator solution test logs for the breathalyzer used in this case, which cover 300 such tests conducted between November 26, 1981 and February 28, 1983. In all but three of those 300 tests the instrument measured within the .01 percent tolerance prescribed by the Department of Health. In the three instances where the reading exceeded the allowable tolerance, the test result was .08 percent instead of the standard .10 percent of the simulator solution. The People attribute these failures to deterioration of the simulator solution.

In People v. Donaldson, 36 A.D.2d 37, 319 N.Y.S.2d 172 it was held that expert testimony as to the nature, function or scientific principles underlying a breathalyzer need not be presented as a necessary foundation for the admissibility of breathalyzer test results. After noting the long usage (since 1954) and wide acceptance of the instrument as a device for testing blood-alcohol content, the court held that the time had come to recognize the general reliability of the breathalyzer (36 A.D.2d supra, p. 39-40, 319 N.Y.S.2d 172; see also, People v. Morris, 63 Misc.2d 124, 311 N.Y.S.2d 53). In so holding, the court observed that, "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" (36 A.D.2d supra, p. 40, 319 N.Y.S.2d 172). Accordingly, the court ruled that the test results in that case were properly admitted in evidence where (1) the person administering the test was properly qualified; (2) the instrument was properly calibrated; (3) the chemicals used in the test were of the proper kind and mixed in the proper proportions; and, (4) the test was properly conducted (36 A.D.2d supra at 40-41, 319 N.Y.S.2d 172; see also, Roy v. Reid, 38 A.D.2d 717, 329 N.Y.S.2d 417; People v. Meikrantz, 77 Misc.2d 892, 898-899, 351 N.Y.S.2d 549).

More recently, in People v. Gower, 42 N.Y.2d 117 397 N.Y.S.2d 368, 366 N.E.2d 69, a case dealing with the admissibility of various certificates offered by the prosecution to prove that a breathalyzer device was in proper working order and the ampoules used contained properly compounded chemicals, the Court of Appeals observed that the reliability of breathalyzer equipment "has been demonstrated and the results of such testing where properly performed are universally accepted" (42 N.Y.2d at 121, 397 N.Y.S.2d 368, 366 N.E.2d 69). After noting the appropriateness of some relaxation of the "rigorous prerequisites" required to authenticate the reliability of such scientific equipment and procedures where they are first employed, the court concluded, "emphasis may be shifted from technical issues of admissibility of evidence to means for measuring its persuasive weight" (42 N.Y.2d at 121-122, 397 N.Y.S.2d 368, 366 N.E.2d 69; see also, Watts, Some Observations on Police-Administered Tests for Intoxication, 45 N.C.L.Rev. 34, 86 ).

In addition, the Legislature has provided that the results of breath tests are admissible into evidence (Vehicle and Traffic Law, § 1195). By so doing, it also recognized the general reliability of such tests when properly conducted (see Roy v. Reid, supra; People v. Donaldson, supra, 36 A.D.2d at p. 40, 319 N.Y.S.2d 172). It is common knowledge that about one-half of the states have enacted similar recognition. ¹

The issue before the court does not call into question the continuing vitality of the authority cited above. Rather, the single issue presented is whether, because of the recent discovery that radio frequency interference may affect the accuracy of a particular model of breath testing instrument, such instrument is thereby rendered unreliable.

As a general rule, before the results of a scientific instrument or procedure may be used as evidence, it must be established that the instrument or procedure has gained general acceptance in the scientific community (see People v. Leone, 25 N.Y.2d 511, 517, 307 N.Y.S.2d 430, 255 N.E.2d 696; People v. Hughes, 88 A.D.2d 17, 19-20, 452 N.Y.S.2d 929; see also, People v. Middleton, 54 N.Y.2d 42, 49-50, 444 N.Y.S.2d 581, 429 N.E.2d 100; see generally, Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later, 80 Columbia Law Review 1197). It has also been suggested that, in addition to a showing of general scientific acceptance, the reliability of the instrument or procedure must be demonstrated (People v. Collins, 94 Misc.2d 704, 707-707, 405 N.Y.S.2d 365; see also People v. Leone, supra, 25 N.Y.2d at p. 518, 307 N.Y.S.2d 430, 255 N.E.2d 696).

The case at bar does not involve the admissibility of a previously unaccepted scientific instrument or procedure (e.g., People v. Leone, supra, People v. Hughes, supra People v. Collins, supra ) nor does it involve a new use of a previously accepted scientific principle (e.g., People v. Friend, 117 Misc.2d 392, 461 N.Y.S.2d 999; People v. Bellizzi 108 Misc.2d 209, 441 N.Y.S.2d 147 measure the speed of an...