People v. Morris
| Decision Date | 28 May 1970 |
| Citation | 63 Misc.2d 124,311 N.Y.S.2d 53 |
| Parties | The PEOPLE of the State of New York v. John MORRIS, Defendant. |
| Court | New York District Court |
Defendant was charged with a violation of Section 1192, subdivision 1, of the Vehicle and Traffic Law. At the close of the People's case, defendant moved to dismiss.
The Statute provides that there can be no conviction unless 'it is shown by means of a chemical test administered under section eleven hundred ninety-four that there was, within two hours of the defendant's arrest, five-hundredths of one percentum or more by weight of alcohol in his blood'.
Two tests were conducted with a machine called a 'Breathalyzer'. A police technician, specially trained for the operation of the machine described the manner in which the tests were conducted. He gave no detailed description of all of the component parts of the machine, but he did describe the manner in which defendant's breath sample was conducted into an ampule containing a chemical solution, which was placed in the machine. He testified to having tested the machine by passing room air through it and obtaining a .00 reading. He then passed vapor from a predetermined .10 alcohol solution through the machine and obtained a reading of .09. Adjusting for the temperature, the calibrated reading on a standard scale printed on a police form should have been .093. He then flushed the machine with air. He then ran a sample of defendant's breath through the machine and obtained a reading of .14. He again flushed the machine and thereafter took a second sample of defendant's breath and obtained a reading of .14.
Defendant's principal contentions are: (2) The test of breath was not a chemical test. (b) The proof of the accuracy of the breath test is insufficient.
The breath was conducted into a chemical solution. The effect or result of that reaction was measured by some electrical means. In a given experiment, the measurement of a chemical result may be by thermometer, mechanical means, sensory observation, such as visual, or taste, or any of a variety of means. The test remains a chemical test, no matter how the result is measured or demonstrated.
In its use of color change by chemical reaction to make a determination, the Breathalyzer is analagous to a Vitascope which is a machine used to test seeds. The Vitascope was held to be an instrument for chemical analysis in Burrows Equipment Co. v. United States, Customs Court, 300 F.Supp. 455, cited in 6A Words and Phrases, 'Chemical analysis'.
Since the reading of .14 are the results of a statutory test, they are admissable. Section 1192 of the Vehicle and Traffic Law expressly so provides. Of course there must be adequate proof that the test was so conducted and the apparatus of such a nature and in such operating condition that it produced a reasonably accurate result. The test by room air and by the use of the .10 alcohol solution and the taking of two samples, each resulting in the same reading, are some evidence supporting the accuracy of the reading. The experience of the technician and the routine which he followed, further substantiates its accuracy. There may have been error because of some deficiency or defect in some component part, or in the quantity, or the quality of the chemical, or the conduct or condition of the person tested.
No expert was introduced to testify as to the 'operating...
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People v. Victory
...enforcement agencies for use in testing BAC (see, People v. Donaldson, 36 A.D.2d 37, 319 N.Y.S.2d 172 [4th Dept.1971]; People v. Morris 63 Misc.2d 124, 311 N.Y.S.2d 53 [Nassau Dist.Ct.1970].) The BAC test clearly is the most important single piece of evidence from which the condition of the......
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...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 genera......
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...conduct, speech and demeanor to establish the fact of the defendant's impaired ability or intoxication (See People v. Morris, 63 Misc.2d 124, 127, 311 N.Y.S.2d 53, 56). The third and final issue for consideration, is raised on behalf of Kopesky alone. He contends that his conviction must be......
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