People v. Jones
| Decision Date | 14 April 1983 |
| Citation | 461 N.Y.S.2d 962,118 Misc.2d 687 |
| Parties | The PEOPLE of the State of New York v. William JONES, Defendant. |
| Court | New York County Court |
Sol Greenberg, Dist. Atty., for the People; Lawrence Wiest, Asst. Dist. Atty., of counsel.
Michael Feit, Albany, for defendant.
DECISION AND ORDER
The issue presented by the motion of the defendant is whether the results of a breath test performed on an Intoximeter 3000, a device employing infrared and electric analysis of breath vapors, are admissible as evidence in a prosecution for driving while intoxicated.
A suppression hearing was held at which this Court heard testimony from one of the developers of the instrument, from an official of the Bureau of Municipal Police in the New York State Division of Criminal Justice Services, from a Project Director for the breath alcohol program of the U.S. Department of Transportation involved in the evaluation of breath alcohol test devices for the National Highway Traffic Safety Administration and, for the defendant, from a professor of chemistry at the State University of New York at Albany.
This is a case of first impression and may be of broad impact throughout the State of New York; thus a full exposition of the issues and their resolution is required.
The Intoximeter 3000 is a breath-testing device which utilizes infrared energy and electrical current to detect the presence of ethyl alcohol (ethanol) in the breath of a driver. The device, as are all breath-testing devices, is based upon Henry's Law 1 and, unlike the more common breath-testers such as the breathalyzer, upon the Beer-Lambert Law of Absorption. 2
The Intoximeter 3000 is equipped with an infrared energy source of nichrome (an alloy of nickel, chromium and iron) surrounding a ceramic core. An electric current passing through this source causes two beams of infrared energy to be emitted in the direction of a two-chambered gas cell after reflecting off a collimating mirror. After traversing the gas cell, the infrared beams pass through a narrow band interference filter. This filter permits infrared energy with a wavelength ranging from 3.3 to 3.48 microns to pass through and strike a detector while at the same time blocking energy with wavelengths greater or lesser than that range. Thus the beam of energy striking the detector is modified so that it corresponds to one of the major absorption bands of ethyl alcohol.
The cell through which the infrared beams pass has two chambers. One, the reference cell, contains only room air. The other, the sample cell, contains during a test 900 cubic centimeters of the subject's alveolar air. The device gives a reading of the amount of interfering substance 3 in the subject's breath by comparing the amount of infrared energy striking the detector after the two beams pass through the chambers, one through the sample cell, the other through the reference cell. Otherwise stated, the device compares the amount of infrared energy absorbed by the air from the lungs of the subject with the amount absorbed by the air from the room. If the ratio resulting from that reading (energy absorbed by the alveolar air/energy absorbed by the room air) is greater than one, there is present in the subject's breath some substance which absorbs infrared radiation at 3.39 microns. The amount of interfering substance present is determined by the amount of infrared energy it absorbs. At this point it is impossible to conclude that the absorbing substance is ethyl alcohol because in addition to ethyl alcohol there are other substances which absorb radiation at 3.39 microns.
In order to enable the Intoximeter 3000 to give a specific reading for ethyl alcohol, another device is necessary. Thus the Intoximeter 3000, in addition to its infrared analysis of breath based on the Beer-Lambert Law of Absorption, also contains a semi-conductor (a Taguci sensor) by which it is able to distinguish ethyl alcohol from other substances which absorb infrared radiation in the area of 3.39 microns. 4
The Taguci sensor is a semi-conductor device the conductivity of which is influenced by the ambient air in the sample chamber. The conductivity of the semi-conductor varies when there is present in that ambient air an oxidizible vapor such as ethyl alcohol or other hydrocarbon. Programmed into the memory of the computer that is mated to the Intoximeter 3000 are the specific conductivity readings (in amperes) of the sensor when ethyl alcohol is present in the sample chamber at varying levels which correspond to the various blood-alcohol levels. These conductivity readings are predetermined empirically in the laboratory, and are specific for ethyl alcohol. Every other substance that absorbs infrared radiation at a wavelength of 3.39 microns produces a different current in the semi-conductor. The computer incorporated into the device compares the outputs from the infrared sensor (amount of infrared energy absorbed) and the semi-conductor (amperes of electrical current). If the semi-conductor reading does not correspond to that stored in the computer's memory for the blood-alcohol level reported by the infrared sensor, an interferent other than or in addition to ethyl alcohol is present in the subject's breath. The computer performs a calculation to determine the difference between the reading for the blood-alcohol level reported by the infrared sensor and the reading from the semi-conductor sensor, which difference automatically reduces the infrared reading by a corresponding amount. That adjusted amount is reported as the subject's blood-alcohol level. 5
Operation of the Intoximeter 3000 is relatively simple and requires minimal operator intervention compared with more common breath-testing devices.
Each test commences with a twenty minute waiting period during which the subject is observed to insure that he does not ingest any alcohol, regurgitate or vomit. The operator presses a "start" button and then follows the machine's commands to enter his name and identification number and the subject's name. Following the last entry, the machine automatically blanks and purges to remove any residual alcohol fumes and to take a baseline reading, which ought to read ".00." The machine then commands the subject to blow into the breath tube until the machine indicates that a sufficient sample has been entered. The Intoximeter then reports the subject's blood-alcohol content on its display and proceeds to purge and blank itself. The machine then automatically runs a test with a reference solution, the ethyl alcohol content of which has been previously certified by the State Police Laboratory. Following the test with the reference sample, the machine again purges itself. The operator then presses the "print" key, whereupon the information previously entered and the results of the subject's test, the reference sample test and the blank tests, the latter two being control tests to assure that the machine is functioning properly, are printed along with the times that the tests took place. The operator thus is required merely to type certain minimal information on the machine's keyboard; he does not have to handle ampules of chemicals nor turn dials and levers as with more common breath testing devices.
The machine automatically safeguards against any contaminants in the room air and contains fail-safe devices to abort if there are room temperature or electrical or voltage problems, which rarely occur.
Counsel for the defendant makes two threshold arguments. First, that sections 1193-a and 1194 of the Vehicle and Traffic Law permit only a "chemical test" of the breath, blood, urine, or saliva of a motor vehicle operator for the purpose of determining the alcoholic or drug content of his blood.
The defendant argues the Intoximeter 3000, based as it is on infrared and electrical analysis of a driver's breath, is not a "chemical test" and thus the results of such test are inadmissible.
The defendant's position is unrealistic and unfounded. There is no precedent in the State of New York on this issue, but a similar argument was made and rejected in courts of other states with regard to the Omicron Intoxilyzer (another breath-testing device utilizing infrared theory). In Ohio, a court held that even though the infrared test did not involve an actual chemical reaction, the definition of chemical analysis was broad enough to embrace the infrared process (City of Dayton v. Schenck, 63 Ohio Misc. 14, 409 N.E.2d 284). Similarly, in Delaware, the court held that the Intoxilyzer did perform a chemical analysis as required by State law regardless of the fact that the procedure was purely mechanical. The court concluded the term "chemical test" meant only an "analysis" of the substance being tested--that is, an examination of a substance to determine its component parts and proportions thereof, regardless of the method of testing (State of Delaware v. Moore, Del.Super., 307 A.2d 548). This Court likewise concludes that the term "chemical test" as used in Vehicle and Traffic Law 1193-a and 1194 was intended to mean an analysis of the chemistry of the substances therein referred to--breath, blood, urine or saliva--to determine the subject's blood-alcohol content, and was not intended to refer to the method of testing. Thus an analysis of breath as performed by the Intoximeter 3000, which utilizes established principles and laws of physics, is a chemical test within the meaning of that term in Vehicle and Traffic Law 1193-a and 1194. The position advanced by defendant seeks to restrict the meaning of "chemical test" to a process more appropriately called a chemical reaction. There is no authority in the law to require defendant's interpretation. Furthermore, to adopt the defendant's position would be to bind inflexibly the administration of justice to the level of technology extant at the time of the enactment of the statute...
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