The People v. Dragan Boscic
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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 190
The People &c.,
Appellant,
v.
Dragan Boscic,
Respondent.
Bonnie M. Mitzner, for appellant.
Joel M. Proyect, for respondent.
New York State Defenders Association, amicus curiae.
GRAFFEO, J.:
In this case, we consider whether our decision in
People v Todd (38 NY2d 755 [1975]) adopted a standard requiring
that breath-alcohol detection devices must be calibrated at least
every six months in order for the test results to be admissible
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No. 190
We hold that there is no per se, six-month rule and
that the People must instead lay a foundation demonstrating that
the particular device used was in proper working order when the
test was administered.
On November 3, 2007, Constable McCarthy of the Town of
Bethel police force observed a minivan parked on the side of a
road directly underneath a "no standing" sign.
A few minutes
later, McCarthy saw defendant Dragan Boscic walk from a nearby
convenience store and get into the minivan.
As defendant started
to drive the minivan forward, McCarthy pulled the police car in
front of it and exited the vehicle.
According to McCarthy, when he approached the minivan,
he smelled alcohol on defendant's breath, saw that his eyes were
glassy and bloodshot, and noticed that his speech was slightly
slurred.
McCarthy asked defendant if he had consumed alcohol and
defendant admitted to drinking three beers.
McCarthy then
requested that defendant perform four field sobriety tests.
After defendant's poor performance on some of these tests, he was
arrested for suspicion of drunk driving.
Later, at the Sullivan
County Sheriff's Office, McCarthy used a breath-alcohol machine
-- the BAC DataMaster -- to test defendant.
The device issued a
reading indicating that defendant's blood alcohol level was .07%.
Defendant was charged with violating Vehicle & Traffic Law § 1192
(1) -- driving while ability impaired by the consumption of
alcohol.
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No. 190
During the bench trial in Bethel Justice Court, the
People sought to introduce, through the testimony of Constable
McCarthy, the results of the breath-alcohol test.
As part of the
foundation presented in support of the admissibility of the test
results, the People offered a police record certifying that the
DataMaster had been calibrated (i.e., checked and adjusted by a
trained technician) by an employee of the State Division of
Criminal Justice Services on April 6, 2007 -- approximately six
months and three weeks before the test was administered to
defendant.
Defense counsel argued against admission of the test
results on the basis that the People failed to lay an adequate
foundation, asserting that People v Todd (38 NY2d 755 [1975])
required that breathalyzer machines must be calibrated at least
every six months and the calibration in this case was untimely.
Justice Court rejected that contention and concluded that the
People demonstrated that the DataMaster device was working
properly at the time defendant was tested.
Defendant was found
guilty as charged.
On appeal, Sullivan County Court reversed and dismissed
the accusatory instrument (24 Misc 3d 1227 [A] [2009]).
The
court interpreted Todd as creating a six-month calibration rule
and therefore held that the DataMaster results were inadmissible
because the device had not been calibrated within six months of
defendant's arrest.
County Court also ruled that, without the
breath-alcohol test results, McCarthy's trial testimony was
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No. 190
insufficient as a matter of law to prove defendant's guilt beyond
a reasonable doubt.
A Judge of this Court granted the People
leave to appeal (13 NY3d 937 [2010]) and we now reverse.
Breath-alcohol detection machines have long been
considered scientifically reliable, but it remains necessary for
the proponent of breath-alcohol test evidence to establish an
adequate evidentiary foundation for the admission into evidence
of the results of the test (see e.g. People v Mertz, 68 NY2d 136,
148 [1986]).
The issue here is whether, as a predicate to the
admissibility of this evidence, there needed to be proof that the
instrument used to test defendant had been calibrated during the
past six months.
Defendant claims that People v Todd (38 NY2d
755 [1975]) established a six-month calibration requirement that
was not met here.
Although Todd is susceptible to such an
interpretation, we do not read it in such a rigid manner.
The trial evidence in Todd indicated that the
breathalyzer machine "was constantly left on at the [state
police] barracks and never turned off," and had been calibrated
more than six months before it was utilized to test the defendant
(79 Misc 2d 630, 633 [County Ct, Delaware County, 1974]).
The
intermediate appellate court believed that those "two factors
taken together raise[d] a reasonable doubt . . . as to the
reliability of that particular machine" (id.).
We agreed in a
memorandum decision, explaining that "[t]he People failed to
establish that the breathalyzer apparatus had been timely
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No. 190
calibrated" and that "[i]t was incumbent upon the District
Attorney to show that the machine was in proper working order"
(38 NY2d at 756).
Our decision was necessarily premised on both
of these interrelated circumstances -- a breathalyzer device that
had never been deactivated and, in light of its continuous
operation, had not been recently calibrated.
Thus, Todd did not
explicitly articulate a six-month standard or allude to a
specific calibration time frame.
We have not relied on a six-month, bright-line rule in
subsequent cases that dealt with the foundation requirements for
breath-alcohol evidence.
Rather than applying a specific
temporal limitation, our post-Todd decisions have repeatedly
emphasized that the applicable principle is whether the detection
instrument was in "proper working order" at the time a test was
administered (People v Gower, 42 NY2d 117, 120 [1977]; People v
Freeland, 68 NY2d 699, 700 [1986]; People v Kinne, 71 NY2d 879,
880 [1988]; see People v Alvarez, 70 NY2d 375, 380 [1987]; People
v Mertz, 68 NY2d at 148).
The Third and Fourth Departments have
interpreted our precedent similarly and rejected the notion that
it is impossible for a breath-alcohol device to function properly
simply because it has not been calibrated for six months (see
e.g. People v Dargento, 302 AD2d 924, 924 [4th Dept 2003]; People
v Manino, 147 AD2d 926, 926 [4th Dept 1989]; People v English,
103 AD2d 979, 980 n * [3d Dept 1984]).
We concur with that view
and therefore hold that such evidence is admissible if the People
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No. 190
demonstrate that the machine was in proper working order at the
time it issued the test results in question.
Todd was decided almost 35 years ago and in the ensuing
decades, scientific knowledge has advanced dramatically, leading
to significant technological changes in breath-alcohol detection
devices.
The scientific methods incorporated in modern-day
breath testing instruments are substantially different from the
earlier generations of these devices.
For instance, in 1975 when
Todd was decided, the prevalent scientific process for breathalcohol analysis involved chemical oxidation, wherein a breath
sample was passed through an ampule containing a chemical mixture
(usually potassium dichromate in sulfuric acid).
The degree of
ethanol content in the breath stimulated changes in the
absorption abilities of the solution that could be detected by
transmitting light through the sample.
Results were then
compared with an unreacted sample of the solution to achieve a
blood-alcohol concentration reading (see Faigman et al., Modern
Scientific Evidence:
The Law and Science of Expert Testimony
§ 41:55; Giannelli & Imwinkelried, Scientific Evidence § 22.03
[b], at 380).
More recent technology relies on infrared
absorption spectrometry.
This technology -- which is used in the
BAC DataMaster -- calculates blood-alcohol concentration by
passing infrared light through a chamber holding the breath
sample to gauge the absorption rate of "infrared radiation at
specific wavelengths" (Faigman et al., Modern Scientific
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No. 190
The Law and Science of Expert Testimony § 41:52; see
Giannelli & Imwinkelried, Scientific Evidence § 22.03 [b], at
389; Rose, New York Vehicle & Traffic Law § 35:21).
Given the
technological advances that have occurred and will continue to
evolve, paired with the proliferation of available breath-alcohol
detection devices approved for use by the New York State
Department of Health (DOH) (see 10 NYCRR 59.4),* we do not
believe that a court-imposed calibration timing rule for all
current technologies would be helpful in achieving the primary
objective, which is to provide the fact-finder a basis to
determine whether the particular instrument used produced
reliable results in a specific instance.
Even if we had
articulated a bright-line calibration rule more than three
decades ago, the changes in scientific testing methods would have
provided reason to revisit it.
It further bears noting that both parties to this
litigation recognize that DOH has been charged by the Legislature
to evaluate and approve specific models of breath-alcohol testing
machines (see Vehicle & Traffic Law § 1194 [4] [c]).
In its
regulatory capacity, DOH has determined that such instruments
must be calibrated "at a frequency as recommended by the device
manufacturer" but not less than once a year (10 NYCRR 59.4 [c]
*
DOH currently lists about 100 different models of breathalcohol testing devices (including the DataMaster) that are
approved for use by law enforcement agencies (see 10 NYCRR 59.4
[b]).
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No. 190
[effective April 23, 2010, as amended July 22, 2010]).
The
promulgation of these regulations will, for arrests occurring
after the effective date of the regulations, provide courts with
information regarding recommended calibration intervals, not to
exceed one year, when assessing the adequacy of foundation
requirements for the admissibility of breath-alcohol test
results.
But here, there is no question that section 59.4 (c) of
the regulations -- the provision addressing calibration standards
-- was not effective at the time of defendant's arrest, and the
People do not assert that this regulation supplies the applicable
standard in this case.
We therefore rely on our holding that there has been no
strict six-month calibration rule pronounced by this Court for
breath testing evidence.
Our conclusion does not mean that
appropriate and adequate calibration procedures can be
disregarded by law enforcement.
Rather, the admissibility of
breath-alcohol analysis results remains premised on the People's
ability to demonstrate, among other requirements, that the device
was in "proper working order" when it was used to test an accused
(People v Freeland, 68 NY2d at 700).
And nothing prevents an
accused from seeking to introduce relevant evidence that may
affect other foundational issues or the weight that should be
given to results generated by a particular device, as defendant
attempted during his trial.
In this case, the certificate in
evidence attesting that the last calibration occurred slightly
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No. 190
more than six months prior to defendant's arrest was a sufficient
predicate as part of the proper foundation to receive the
DataMaster results in evidence because it adequately assured that
the instrument was capable of producing accurate information when
defendant was tested.
Consequently, Justice Court did not err as
a matter of law in concluding that the DataMaster results could
be considered during the trial.
We therefore remit to County
Court for consideration of whether the trial evidence, including
the DataMaster results, was legally sufficient and, if necessary,
whether the weight of the evidence supported the conviction.
Accordingly, the order of County Court should be
reversed and the case remitted to that court for further
proceedings in accordance with this opinion.
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Order reversed and case remitted to County Court, Sullivan
County, for further proceedings in accordance with the opinion
herein. Opinion by Judge Graffeo. Chief Judge Lippman and
Judges Ciparick, Read, Smith, Pigott and Jones concur.
Decided November 17, 2010
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