Opinion
2012-07-13
PEOPLE of the State of New York, Plaintiff, v. Todd BOHRER, Defendant.
Sandra Doorley, District Attorney, Rochester (Jennifer Kennedy, of counsel), for plaintiff. Christopher Schiano, Rochester, for defendant.
Sandra Doorley, District Attorney, Rochester (Jennifer Kennedy, of counsel), for plaintiff. Christopher Schiano, Rochester, for defendant.
JAMES P. MULLEY JR., J.
Defendant plead guilty to Driving While Intoxicated in Penfield Town Court and was sentenced to a one year conditional discharge. One condition required defendant to install and maintain an ignition interlock device in his motor vehicle for six months.
Defendant had a Smart Start ignition interlock installed in his vehicle. The Monroe County Office of Probation–Community Corrections (Probation) subsequently notified the court that an ignition interlock device report indicated a failed test where the BAC was .05% or higher. After determining that a failed test did not violate any condition imposed at sentencing, the court modified the conditions to include the additional requirement that defendant “shall not blow into the ignition interlock after consuming any alcoholic beverage.”
Thereafter, Probation notified the court that a device report indicated another failed test. A declaration of delinquency was filed, alleging that defendant violated the terms of his conditional discharge by blowing into the ignition interlock device after consuming an alcoholic beverage. Defendant denied consuming alcohol, contending that the positive test was caused by his use of mouthwash.
The court scheduled a hearing pursuant to CPL § 410.70 to determine whether defendant violated a condition of the sentence. Defendant contends that the test results from the ignition interlock device are inadmissible unless the scientific reliability of the device is first established at a Frye hearing. The People contend that Frye inquiries are unwarranted in the context of a CPL § 410.70 hearing.
The issue presented is whether evidence of a failed ignition interlock test is admissible at a violation of a conditional discharge hearing without first conducting a Frye hearing.
In New York, the admissibility of scientific evidence is governed by the Frye rule. “The long-recognized rule of Frye v. United States, 293 F. 1013 [1923] is that expert testimony based on scientific principles is admissible but only after a principle or procedure has gained general acceptance in its specified field” ( People v. Wesley, 83 N.Y.2d 417, 422, 611 N.Y.S.2d 97, 633 N.E.2d 451). “(A)ttention must focus on the acceptance of such evidence as reliable by the relevant scientific community” ( People v. Wesley, supra, at 422, 611 N.Y.S.2d 97, 633 N.E.2d 451 [1994] ).
The court concludes that the Smart Start ignition interlock device at issue is generally accepted as reliable by the relevant scientific community, and therefore, a Frye hearing is unnecessary.
A court need not hold a Frye hearing where it can rely upon previous rulings in other court proceedings as an aid in determining the admissibility of the proffered testimony” ( People v. LeGrand, 8 N.Y.3d 449, 458, 835 N.Y.S.2d 523, 867 N.E.2d 374 [2007] ). A court may find a scientific test reliable based on general acceptance as shown through judicial opinions ( Lahey v. Kelly, 71 N.Y.2d 135, 141, 524 N.Y.S.2d 30, 518 N.E.2d 924 [1987] ).
An ignition interlock is a blood alcohol concentration (BAC) measuring device connected to a motor vehicle ignition system that requires the operator to provide a deep-lung breath sample to determine the operator's BAC level before the vehicle can be started ( see, 9 NYCRR 358.3(1)). If the operator's BAC exceeds the calibrated setting on the device, the vehicle will not start and a failed test report is sent to the monitoring agency.
Although no reported judicial opinion in New York holds that the results of an ignition interlock device are accepted as scientifically reliable, the reliability of breath alcohol detection machines in general is well-established. In People v. Alvarez, the Court of Appeals reaffirmed its prior decisions which held that “the scientific reliability of breathalyzers in general is no longer open to question” ( People v. Alvarez, 70 N.Y.2d 375, 380, 521 N.Y.S.2d 212, 515 N.E.2d 898 [1987], quoting People v. Mertz, 68 N.Y.2d 136, 148, 506 N.Y.S.2d 290, 497 N.E.2d 657 [1986] ). In People v. Boscic, the Court again spoke to the reliability of breathalyzers, stating, “(b)reath-alcohol detection machines have long been considered scientifically reliable” ( People v. Boscic, 15 N.Y.3d 494, 497, 912 N.Y.S.2d 556, 938 N.E.2d 989 [2010] ). Judicial opinions regarding Alco–Sensor breath screening devices also support the conclusionthat breath alcohol detection machines are considered scientifically reliable. In People v. Thomas, 121 A.D.2d 73, 509 N.Y.S.2d 668 [4th Dept. 1986], the court found that, while Alco–Sensor test results are inadmissible at trial for the purpose of establishing intoxication, such results are admissible at suppression hearings, because “breath screening devices have won acceptance as being sufficiently reliable to establish probable cause for an arrest”. Similarly, in People v. Jones, 10 Misc.3d 413, 805 N.Y.S.2d 807 (N.Y.Co.Ct.2005), aff'd 50 A.D.3d 1058, 856 N.Y.S.2d 225, [2nd Dept. 2008], the court stated that the Alco–Sensor is “sufficiently reliable for use in determining the presence of alcohol”, and found that it was not error to admit defendant's positive Alco–Sensor tests into evidence at a violation of probation hearing.
Other courts have examined statutory and regulatory schemes to determine if scientific evidence is generally accepted as reliable by the relevant scientific community.
Vehicle and Traffic Law § 1194(4)(c) requires the Department of Health (DOH) to issue regulations approving satisfactory methods of conducting chemical analysis of a person's blood, urine, breath or saliva. Pursuant to that directive, DOH evaluates specific models of breath alcohol testing machines and publishes a list of devices approved for use by law enforcement ( see, People v. Boscic, supra at 499, 912 N.Y.S.2d 556, 938 N.E.2d 989; 10 NYCRR § 59.4(b)). Numerous courts have relied on the DOH list of approved breath testing instruments to establish the reliability of a particular device. For example, in People v. Hampe, 181 A.D.2d 238, 585 N.Y.S.2d 861 [3rd Dept. 1992], the court found that inclusion of the BAC Verifier on the list of approved devices obviated the need for a Frye hearing. The general acceptance of the reliability of the test results of the BAC Verifier “was established by reason of the specific inclusion of the BAC Verifier in the list of breath testing instruments approved by DOH in regulations promulgated pursuant to Vehicle and Traffic Law § 1194(4)” ( see also, People v. Robinson, 53 A.D.3d 63, 70, 860 N.Y.S.2d 159 [2nd Dept. 2008]; People v. Lent, 29 Misc.3d 14, 908 N.Y.S.2d 804 [App. Term 2010] ).
The statutory and regulatory scheme governing the use of ignition interlock devices is similar to that governing breathalyzer machines. The Vehicle and Traffic Law charges DOH with the task of approving ignition interlock devices (Vehicle and Traffic Law § 1198(6)(a)). Manufacturers of ignition interlock devices must apply to DOH to certify a device for use in New York (10 NYCRR § 59.10). The Office of Probation and Correctional Alternatives publishes a list of Qualified Ignition Interlock Device Manufacturers. The Smart Start ignition interlock device at issue here is included on the published list for all regions, which further supports a finding that the device's reliability has been accepted by the relevant scientific community.
Other judicial decisions analyze whether the proffered scientific evidence is generally accepted as reliable by government agencies.
In People v. Hopkins, 46 A.D.3d 1449, 848 N.Y.S.2d 460 [4th Dept. 2007], the court admitted data contained in the sensing diagnostic module (SDM) in defendant's automobile, which provided information regarding the speed at which defendant was traveling. The court concluded that a Frye hearing was not required because data recorded on the SDM “is generally accepted as reliable by the National Highway Traffic Safety Administration”.
People v. Oehler, 12 Misc.3d 1101, 821 N.Y.S.2d 380 [County Ct. 2006], aff'd, 52 A.D.3d 955, 859 N.Y.S.2d 525 [3rd Dept. 2008], is also instructive. There, the court considered the admissibility of the results of an EtG test that showed defendant's urine was positive for the presence of a metabolite produced by the body upon the ingestion of alcohol. The court took judicial notice that “the National Transportation Safety Board (NTSB), the Federal Aviation Administration (FAA) and the Civil Aerospace Medical Institute (CAMI) routinely test for EtG to determine whether alcoholic beverages have been consumed”, and admitted the test results at defendant's violation of probation hearing without first conducting a Frye hearing.
The same analysis has been applied to breath testing devices. In People v. Hampe, supra, in addition to the presence of the device on the DOH list, the court cited acceptance of the BAC Verifier by the NHTSA in reaching its conclusion that expert testimony concerning the accuracy and reliability of the device was unnecessary.
To certify an ignition interlock device in New York State, the manufacturer must demonstrate to the satisfaction of DOH that “the model meets or exceeds the model specifications for breath alcohol ignition interlock devices adopted by the National Highway Traffic Safety Administration” (10 NYCRR § 59.10(c)). Thus, the NHTSA, the governmental agency responsible for research relating to traffic safety, has accepted the reliability of the Smart Start ignition interlock device at issue.
The general acceptance of breath testing devices in judicial opinions, the inclusion of the Smart Start Ignition Interlock deviceon the list of certified devices compiled by DOH, and the requirement that all certified ignition interlock devices meet or exceed the model specifications adopted by NHTSA, compels the conclusion that a Frye hearing is not necessary to determine the reliability of the device. Accordingly, the court takes judicial notice that the Smart Start ignition interlock is generally accepted by the relevant scientific community as a reliable device for the purpose of showing that a person has consumed alcoholic beverages.
Although the People are not required to provide expert testimony regarding the scientific principles underlying the ignition interlock device at the CPL § 410.70 hearing, the People must establish a proper foundation for reception of the evidence. Once Frye has been satisfied, “the focus moves from the general reliability concerns of Frye to the specific reliability of the procedures followed to generate the evidence proffered” ( People v. Wesley, supra, at 429, 611 N.Y.S.2d 97, 633 N.E.2d 451). The foundation for the admissibility of breath-alcohol test results “remains premised on the People's ability to demonstrate ... that the device was in proper working order when it was used to test an accused. 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 the results” ( People v. Boscic, supra, at 500, 912 N.Y.S.2d 556, 938 N.E.2d 989).
Finally, the People's assertion that a Frye inquiry is completely unwarranted in the context of a CPL § 410.70 hearing should be addressed. That scientific evidence is being offered at a CPL § 410.70 hearing, standing alone, is not a basis to deny a Frye hearing.
CPL § 410.70(3), which governs the manner of conducting a hearing to determine whether a defendant has violated a condition of his sentence, states that “the court may receive any relevant evidence not legally privileged” (emphasis added). To be relevant, evidence must have a tendency to make the existence of a material fact “more probable or less probable than it would be without the evidence” ( People v. Davis, 43 N.Y.2d 17, 27, 400 N.Y.S.2d 735, 371 N.E.2d 456 [1977];see, also, People v. Alvino, 71 N.Y.2d 233, 241, 525 N.Y.S.2d 7, 519 N.E.2d 808 [1987] ). Scientific evidence that is not generally accepted as reliable in the scientific community is totally lacking in probative value and not relevant ( see, Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 447, 824 N.Y.S.2d 584, 857 N.E.2d 1114 [2006];People v. Burton, 153 Misc.2d 681, 683, 590 N.Y.S.2d 972 [Supreme Court 1992]; Matter of M.Z., 155 Misc.2d 564, 568, 590 N.Y.S.2d 390 [Family Court 1992]; People v. Morris, 8 Misc.3d 360, 363, 793 N.Y.S.2d 754 [NYC Crim. Court 2005] ). Consequently, such evidence should be excluded from any fact finding hearing, including a CPL § 410.70 hearing.
No appellate court in New York State has ruled on the necessity of conducting a Frye hearing before admitting novel scientific evidence at a CPL § 410.70 hearing. In People v. Oehler, 52 A.D.3d 955, 859 N.Y.S.2d 525 [3rd Dept. 2008], the Third Department did not reach defendant's contention that the court erroneously elicited testimony at defendant's violation of probation hearing on the results of an EtG test without first conducting a Frye hearing. However, lower courts have found Frye hearings necessary before admitting scientific evidence at bench trials, suppression hearings, and post-plea proceedings. See, e.g., People v. Dorcent, 29 Misc.3d 1165, 909 N.Y.S.2d 618 (NYC Crim. Ct. 2010) where the court held a Frye hearing before deciding whether evidence from a Secure Continuous Remote Alcohol Monitoring (SCRAM) bracelet, a transdermal alcohol detection device which measure the alcoholic content of perspiration, could be admitted at a hearing to determine if defendant violated the terms of his plea agreement.
The necessity of a Frye hearing turns on the reliability of the proffered scientific evidence, not on the nature of the proceeding at which it is offered. In this case, a Frye hearing is unnecessary because the court may take judicial notice that the proffered scientific evidence, test results from a Smart Start ignition interlock device, has been generally accepted as reliable by the relevant scientific community.