People v Barker (Russell)

[*1] People v Barker (Russell) 2004 NY Slip Op 51560(U) Decided on December 9, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 9, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: December 9, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
2004-197 OR CR

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

RUSSELL S. BARKER, Appellant.

Appeal by defendant from a judgment of the Justice Court, Town of Wawayanda, Orange County (P. Gromacki, J.), rendered on November 6, 2003, convicting him of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and imposing sentence.

Judgment of conviction unanimously reversed upon the law, fine, if paid remitted, and matter remanded to the court below for a new trial.

The results of the blood test, indicating that defendant's blood alcohol level was .24 percent, was improperly admitted at trial. The regulations of the New York State Health Department require that the blood be drawn into, or subsequently deposited into,
a container which contains a solid anticoagulant (New York State Department of Health
Regulations [10 NYCRR] § 59.2). The court's return fails to establish that the People
introduced evidence indicating compliance with said regulations. Due to the lack of competent evidence from which the trier of fact could conclude that the chemicals contained in the tubes into which defendant's blood was drawn were of the proper kind and amount and did not disturb the integrity of the blood sample, a new trial is warranted (see People v McDonagh, NYLJ, Apr. 3, 1992 [App Term, 9th & 10th Jud Dists]).

In view of the forgoing, we need not consider the remaining issues raised on appeal.
Decision Date: December 09, 2004