People v. Mertz

Decision Date03 July 1986
Citation68 N.Y.2d 136,506 N.Y.S.2d 290
Parties, 497 N.E.2d 657 The PEOPLE of the State of New York, Respondent, v. Edward MERTZ, Appellant.
CourtNew York Court of Appeals Court of Appeals
OPINION OF THE COURT

MEYER, Judge.

A violation of Vehicle and Traffic Law § 1192(2) is not established unless the trier of fact finds that while operating a motor vehicle defendant had a blood alcohol content (BAC) of .10 of 1% or more. Evidence that a breathalyzer test administered within two hours of arrest showed defendant to have such a BAC is sufficient to establish prima facie a violation of the subdivision. It is, however, error not to permit defendant's attorney to argue on the basis of evidence, whether through cross-examination of the People's witnesses or testimony of defendant's witnesses, expert or other, from which it could be found that defendant's BAC at the time of vehicle operation was less than .10%, that if the jury so found defendant was not guilty of violating the subdivision. It is error also to charge that evidence that the individual administering the test possesses a permit from the Department of Health creates a rebuttable presumption that the breathalyzer examination was properly given, and to receive in evidence the logs for the breathalyzer, simulator and ampoule on the basis of foundation testimony which did not establish that it was the regular course of business to make the records contained in those logs at the time of the tests recorded in them or within a reasonable time thereafter (CPLR 4518[a] ). For all of those reasons, the order of the Appellate Term should be reversed and a new trial ordered.

I

Shortly before 1:28 a.m. on April 19, 1983, defendant's automobile ran off the roadway of Bayville Avenue and partially through a fieldstone wall some 10 to 15 feet from the road. Officer Sprague, who responded to the radio run concerning the accident, found defendant behind the wheel, the windshield of the automobile cracked and defendant bleeding from lacerations of his face and nose. Asked what happened, defendant responded that he was not sure, that he remembered only driving along Bayville Avenue, but nothing after that. The officer noted that defendant had some trouble speaking and that as he exited the vehicle to enter the ambulance that had been called he staggered, that his eyes were bloodshot and that there was an odor of alcohol on his breath.

The officer, who had made a mental note to arrest defendant for driving while intoxicated, arrived between 1:55 and 2:00 a.m. at the hospital to which defendant had been taken. He could not administer physical coordination tests because defendant was being treated for his injuries, but he placed defendant under arrest and then called the Highway Patrol Bureau for a breathalyzer technician. Officer Needleman, responding to the call, arrived at the hospital at 2:37. Defendant was given the required warnings concerning submission to a breathalyzer examination and consented to do so, signing the required authorization form. Needleman also noticed that defendant was slurring words and that there was an odor of alcohol on his breath. Having determined that the breathalyzer was correctly set up and was functioning properly, Needleman had defendant blow into the instrument twice. The first sample, taken at 3:25 a.m., yielded a .15 reading. The second, taken at 3:35 a.m., after the instrument had been purged, recorded a reading of .16. On the basis of those readings defendant was charged with a violation of Vehicle and Traffic Law § 1192(2). The maintenance, simulator and ampoule logs for the breathalyzer were admitted in evidence on the basis of Needleman's testimony that they were made in the normal course of business and that it was the normal course of business to keep them, but over defendant's objection that the People had to show "that the entries are made on [sic ] or about the time that the events occurred", which the Trial Judge overruled. Each log also bore the certification that it was a true copy of the report made by the breathalyzer technician of the Nassau County Police Department. 1

Needleman testified that both tests were performed under identical circumstances and explained the difference between the two readings as occurring because not a deep enough sample was obtained at the two different times or because one sample was longer than the other. Through Dr. Jay Zimmerman, associate professor of physiology at St. John's University, however, defendant presented evidence that alcohol is absorbed into the blood predominantly (90%) through the small intestine and that the time for absorption varies, depending on the presence of food, the type of alcohol, the type of mixer, the physical state of the individual and the presence of stress or trauma, from 15 to 40 minutes on the one hand to two to three hours on the other. Mixers and the presence of food, he explained, would delay the rate of absorption, fats being digested much more slowly, carbohydrates and proteins more rapidly. He further identified the food (a bacon cheeseburger with french fries), which defendant had testified he had eaten at about 12:30 a.m., as consisting of protein and carbohydrates but to a large extent fat, the presence of which "dramatically delays the absorption of alcohol", and stated that it was possible that defendant's blood alcohol would be on the increase two to three hours after such a meal and that there was no way to predict from the .15 and .16 readings testified to by Needleman whether defendant's BAC was greater than .10 two hours earlier.

Notwithstanding Dr. Zimmerman's testimony, when defendant's attorney during summation began to argue that it was fair to infer from the fact that defendant's BAC was rising at 3:35 that at the earlier time when he was driving it was much lower, the Trial Judge responded to the prosecutor's objection by stating in the presence of the jury that the only question for the jury was whether the sample was taken within two hours of arrest and showed a BAC in excess of .10, that "[t]heir concern would be what was the reading at 3:25 and 3:35, that's all." His charge to the jury, however, was that to find defendant guilty of violating Vehicle and Traffic Law § 1192(2) they had to find that "defendant operated a motor vehicle at the time and place in question and that at the time he had .10 of one percent or more by weight of alcohol in his blood" as shown by chemical analysis. And with respect to the analysis he charged that under Vehicle and Traffic Law § 1194(9) the fact that it was made by a person possessing a permit issued by the Department of Health was presumptive evidence that the examination was properly given but that "presumptions may be rebutted or overcome by other evidence tending to disprove the presumption." Defendant's attorney excepted to both portions of the charge: as to the first because he had been prevented from so arguing in summation to the jury and because the charge would be misleading to the jury; as to the second because the statutory presumption was permissive in nature and the defense did not have the burden of rebutting it.

The jury found defendant guilty of violating Vehicle and Traffic Law § 1192(2). On appeal by defendant from the judgment entered on that verdict, the Appellate Term affirmed in a memorandum which discussed only the scope of the subdivision. As to that it noted that "[t]he gravamen of the crime is the operation of a motor vehicle after ingestion of sufficient alcohol to produce the reading condemned by the statute within two hours of arrest." The appeal is before us by leave of a Judge of this court (66 N.Y.2d 765, 497 N.Y.S.2d 1039 488 N.E.2d 125). We conclude (1) that defendant was improperly denied the opportunity of arguing to the jury that his BAC at the time of operation was less than .10, (2) that the breathalyzer logs were admitted without proper foundation and (3) that the charge with respect to Vehicle and Traffic Law § 1194(9), because it may have been construed by the jury to impose upon defendant the burden of rebuttal, was improper. We therefore reverse.

II

Vehicle and Traffic Law § 1192(2) provides that "[n]o person shall operate a motor vehicle while he has .10 of one per centum or more by weight of alcohol in his blood as shown by chemical analysis of his blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this chapter." The legislative history of the subdivision is traced in People v. Schmidt, 124 Misc.2d 102, 478 N.Y.S.2d 482, and need not be repeated in detail here. It is sufficient for purposes of the present case to note that whereas prior versions of the section were phrased in terms of the prima facie effect of various BAC levels, the present subdivision, enacted by New York and, in varying versions, by some 28 other jurisdictions under congressional impetus, 2 does not contain similar language. Some confusion has resulted from the fact that although section 1192(2) proscribes operation while the driver has a BAC of .10 or more, Vehicle and Traffic Law § 1194(1) permits the chemical test to be made "within two hours after such person has been placed under arrest for any such violation," for, as Dr. Zimmerman's testimony indicates and as other cases and commentators have noted, while blood alcohol content declines over time, the decline does not begin until sometime after the last drink, variously estimated as from 45 minutes to an hour and a half (Fuenning v. Superior Ct., 139 Ariz. 590, 680 P.2d 121; State v. Sutliff, 97 Idaho 523, 547 P.2d 1128; People v. Kappas, 120 Ill.App.3d 123, 76 Ill.Dec. 1, 458 N.E.2d 140; State v. Gallant, 108 N.H. 72, 227 A.2d 597; Commonwealth v. Hartman, 383 Pa. 461, 119 A.2d 211; 1 Erwin, Defense of Drunk Driving...

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