Opinion
Docket No. CR-000115-22BX
02-07-2023
The People of the State of New York v. Jordan Hernandez, Defendant.
For the People: ADA Michael Naughton, Office of Darcel D. Clark, Bronx County District Attorney For Defendant: Mark Formichelli, The Legal Aid Society,
For the People: ADA Michael Naughton, Office of Darcel D. Clark, Bronx County District Attorney
For Defendant: Mark Formichelli, The Legal Aid Society,
Jeffrey Zimmerman, J.
For such a small device, much has been written about the Portable Breath Test ("PBT"). Unfortunately, despite the volume of decisions concerning the PBT, there's a lot of confusion and inconsistency about the admissibility of its results at trial, much of it engendered by the leading treatise in the area, which stakes out an oversimplistic and inaccurate position on the issue.
In this case, the Court was asked to answer a novel question: whether the results of a PBT taken on a Dräger Alcotest 7510 conducted post-arrest in a hospital setting are admissible at trial. After reviewing the Court file, conducting an evidentiary hearing and receiving legal arguments from the parties, as well as analyzing relevant caselaw, the Court finds that under the specific facts of this case, the results are admissible.
The Court wishes to thank Assistant District Attorney Michael Naughton and Mark Formichelli of the Legal Aid Society for their hard work in preparing for and conducting the hearings in this case. They are each a credit to their respective offices.
The Complaint
According to the Criminal Court Complaint, the defendant was arrested for an incident that occurred on December 18, 2021, at approximately 4:15 am in The Bronx. The defendant's vehicle was involved in a collision with three other vehicles. The arresting officer, Officer Winters, observed the defendant had an odor of alcohol on his breath and watery eyes. The defendant denied drinking and refused to take a breathalyzer unless the other motorist also took one. He also indicated he wanted to call his lawyer. The defendant later submitted to a breath test which resulted in a.07 BAC.
The reader may well be asking, "Why all of this mishigas over a.07 blow?" The answer is that the People intend to introduce expert testimony at trial on "retrograde extrapolation" in an effort to demonstrate that the defendant's blood alcohol content was, in fact, higher than that at the time of the accident.
The Legal Argument
The parties engaged in legal argument before the Court regarding the admissibility of the PBT result at trial. The People's position was that the current legal landscape does not render the PBT results per se inadmissible if the results can be shown to be reliable. The defendant, on the other hand, urged the Court to find the results inadmissible for lack of scientific reliability and to find that the holding in People v. Turner, 47 Misc.3d 100 [First Dept, App Term, 2015] is not binding on this Court. After hearing the arguments from the parties, the Court determined a hearing on the admissibility of the PBT would be appropriate in this case to further explore the reliability of the Dräger Alcotest 7510.
The Evidentiary Hearing
The Court conducted an evidentiary hearing to determine the admissibility of the PBT result. The People called two witnesses: Officer Winters, as well as Detective Kessler of the Highway Patrol.
Officer Winters testified to his observations before and after the defendant's arrest. Based on the defendant's involvement in an accident that caused serious injuries, as well as his observations of the indicia of intoxication listed in the complaint, Officer Winters felt probable cause for driving while intoxicated was established, and he placed the defendant under arrest. (Hearing Transcript, pg 28, ln. 4-7). At the scene of the arrest, the defendant was offered the opportunity to give a breath sample using the Alco-Sensor FST, a type of PBT. (Hearing Tr. Pg 28, ln. 8-12). The defendant declined, saying he needed medical attention (Hearing Tr., pg 12, ln. 17-18) and was transported to Lincoln Hospital.
At the hospital, the defendant refused a request to submit a blood sample for testing. (Hearing Tr. Pg 26, ln. 18-24). The defendant did indicate he was willing to give a breath sample. (Hearing Tr. Pg 26, ln. 25- pg 27, ln. 6). Officer Rodriguez from the Highway 1 unit arrived at the hospital to administer a breath test. As a member of the Highway unit, Officer Rodriguez was certified to administer the Dräger Alcotest 7510. (Hearing Tr. Pg 12, ln. 5-10). Before a subject gives a breath sample, he or she must be observed for a period of time to ensure no mouth alcohol impairs the integrity of the results. (Hearing Tr. Pg 71, ln. 2-13). Mouth alcohol can be created by the motorist eating, drinking, hiccupping or regurgitating. (Hearing Tr. Pg 71, ln. 6-9). When the NYPD gives blood alcohol tests at the 45th Precinct using the Intoxilyzer 9000, officers engage in a twenty-minute observation period, which is five minutes longer than the state standard. (Hearing Tr. Pg 71, ln. 14-21). In this case, Winters and Rodriguez engaged in a twenty-minute observation period of the defendant at the hospital. During this observation period, the defendant was not observed to place anything in his mouth. He was not observed eating, drinking or burping in any way. (Hearing Tr. Pg 17, ln. 15-18).
While Officer Winters was certified to administer an Alco-Sensor FST, because the defendant was already under arrest for a DWI and at the hospital, NYPD protocol required Winters to call in the Highway unit to administer a breath test. (Hearing Tr. Pg 30, ln. 5-12).
After the observation period, the defendant gave a breath sample on a Dräger Alcotest machine that resulted in a.07 reading.
Unlike an Alcosensor FST, the Dräger Alcotest connects to a printer that prints out the results of a sample. (Hearing Tr. Pg 19 ln. 15-16). The printout of the defendant's test, which was entered into evidence at the hearing, included the name and model of the PBT used for the sample, the defendant's name, Officer Rodriguez's name and signature, and the BAC result. (Hearing Tr. Pg 18, ln. 1-13; Pg 21, ln. 1-9).
The People also called Detective Timothy Kessler at the hearing. Detective Kessler is assigned to the Highway Patrol where he is a City-Wide Coordinator for the NYPD's DWI testing program. As a City-Wide Coordinator, his responsibilities include assisting in overseeing the procedures and protocols within the NYPD, as well as calibrating the breath instruments used by the NYPD. (Hearing Tr. Pg 36, ln. 14-17). Additionally Detective Kessler is one of three certified technical supervisors within the NYPD Intoxicated Driver's Testing Unit ("IDTU"). (Hearing Tr. Pg 36, line 23-25). As a technical supervisor, he calibrates and performs maintenance on the breath instruments owned by the NYPD. (Hearing Tr. Pg 36, ln. 21- pg 37 ln. 1-3). Detective Kessler has performed approximately 2500-3000 breath tests on the Intoxilyzer 9000 and 5000 E.N. (Hearing Tr. Pg 37, ln. 6-13). Between the breath tests on these machines, as well as roadside breath tests, he estimates he has performed upward of 10,000 breath tests. (Hearing Tr. Pg 37, ln. 14-18). Detective Kessler writes and performs numerous trainings related to DWI offenses and arrests for the NYPD and other organizations around the country, including trainings on standardized field sobriety testing and advanced roadside impaired driver enforcement. (Hearing Tr. Pg 37 ln. 23- pg 38 ln. 1-16.) Detective Kessler has trained more than 20,000 officers in the administration and performance of chemical breath tests since February 2016. (Hearing Tr. Pg 39, ln. 11- 22). Additionally, Detective Kessler has testified as an expert in three fields related to DWI arrests: the detection of individuals who are driving while intoxicated, the procedures and protocols of the NYPD in DWI arrests and the operation and administration of breath tests. (Hearing Tr. Pg 40, ln. 15- pg 41 ln. 6).
Detective Kessler also testified that he is responsible for overseeing eight IDTU facilities within the NYPD. (Hearing Tr. Pg 41, ln 25- pg 42 ln. 2). At these facilities, Detective Kessler, along with his supervisor and other members of his team, calibrates and cleans the instruments and ensures the facilities are operational. (Hearing Tr. Pg 42, ln. 5-10). Detective Kessler is certified to maintain and calibrate various breath analysis instruments, including the Dräger Alcotest 7510. (Hearing Tr. Pg 42, ln. 11-13). The Dräger Alcotest 7510 is a roadside breath instrument used by both NYPD Highway Patrol and the Force Investigation Unit. (Hearing Tr. Pg 42, ln. 17-25). Detective Kessler was trained directly by Dräger Safety over two to three days on how to maintain, calibrate, operate and work on the Dräger Alcotest 7510 to ensure the proper functioning of the machines. (Hearing Tr. Pg 43, ln. 9-12). In addition to being certified to operate and maintain this machine, Detective Kessler is also certified to teach others how to properly administer a chemical test analysis of a person's breath using the Dräger Alcotest 7510. (Hearing. Tr. Pg 43, ln. 21-24).
As a result of his extensive training in using the various breath instruments employed by the NYPD, as well as his vast experience and prior certifications as an expert, this Court deemed Detective Kessler an expert in the administration of chemical test analysis of a person's breath and in the calibration, maintenance, operation and instruction of the Dräger Alcotest 7510, the Alco-Sensor FST and the Intoxilyzer 9000. (Hearing Tr. Pg 48, ln. 14-20).
At the hearing, the People introduced a Dräger Alcotest 7510 machine as a demonstrative exhibit. This was not the actual machine that calculated the defendant's breath sample, but it is the same model. (Hearing Tr. Pg 50 ln. 24-25- pg 51, ln. 1-7). Detective Kessler then explained the functioning of this machine to the Court. When the instrument is turned on, it runs through a self-diagnostic to make sure the machine is in proper working order and able to accept a breath sample for testing. (Hearing Tr. Pg 52, ln. 15-19). These self-checks are designed into the software of the machine, much like a computer when it is rebooted. (Hearing Tr. Pg 76, ln. 8-13). In the event an error is detected during this startup process, an error message would pop up on the screen and the machine would not allow the operator to proceed with testing. (Hearing Tr. Pg 52, ln. 20-24). The operator has no ability to override this error message should it occur. (Hearing Tr. Pg 52, ln. 22-25).
When the machine is initially turned on, it displays the voltage used, date, time, battery life and when it was last calibrated. (Hearing Tr. Pg 54, ln. 18-22). It also warms to a certain temperature through its internal warming device. (Id.) . The machine will indicate when it needs to be calibrated next, and there is no way for the operator to manipulate that calibration date. (Hearing Tr. Pg 54, ln. 23-25- pg 55, ln. 2). Once the internal diagnostic test is completed showing the machine is in proper working order, then the operator will attach a sealed mouthpiece to the machine. (Hearing Tr. Pg 55, ln. 8-14). The mouthpiece is attached to a port on the top of the instrument where it gets locked into place. (Hearing Tr. Pg 56, ln. 3-7). After this occurs the top of the machine will blink green, and the machine will say that it is "ready" to accept a breath sample. (Hearing Tr. Pg 56, ln. 8-11). The operator will then instruct the motorist how to give a breath sample, and the motorist will blow into the machine for approximately seven to ten seconds. (Hearing Tr. Pg 56, ln. 13-17). A flow sensor within the device detects whether someone is in fact blowing into the machine. (Hearing Tr. Pg 56 ln. 18-21).
Each Dräger Alcotest 7510 comes with a printer, which uses infrared technology that will sync the printer up with any instrument that provides breath receipts. (Hearing Tr. Pg 53, ln. 18-20). After a breath test is done, the operating officer can connect the printer to the Dräger Alcotest 7510, and the printer will then print the specific test result. (Hearing Tr. Pg 54, ln. 1-10).
The Dräger Alcotest 7510 is externally calibrated by way of a gas nitrogen/ethanol solution, known as a dry gas standard. (Hearing Tr. Pg 56, ln. 22-23; Hearing Tr. Pg 57, ln. 13-15). The dry gas standard must be stored in a controlled environment in a metal container at a specific temperature. (Hearing Tr. Pg 57, ln. 19-25). When Detective Kessler first receives a Dräger Alcotest 7510, he will inspect it physically to make sure it's in proper working order and intact. (Hearing Tr. Pg 58, ln. 20-25). After he turns the machine on, it will go through its self-diagnostic test to rule out any operational defects. (Hearing Tr. Pg 58 ln. 20-25- pg 59, ln. 1-2). Detective Kessler will then run additional calibration checks using the ethanol gas standard on the new machine by going into menu function and performing an accuracy check, a calibration check and then a final accuracy check before sending the machine out into the field. (Hearing Tr. Pg 59, ln. 4-8). Detective Kessler will calibrate the machine to ensure that it is reading the dry gas standard sample at.10. (Hearing Tr. Pg 59, ln. 9-11). Detective Kessler performed an actual calibration of the demonstrative Dräger unit in the courtroom.
If the machine gives a result that says the sample is at a.10, as it is calibrated to do, then the machine is working properly. (Hearing Tr. Pg 60, ln. 3-8). If the reading comes out as anything other than.10, then Detective Kessler knows the machine needs to be reprogrammed and he can change the calibration for the fuel cell inside the device to match the required result of.10. (Hearing Tr. Pg 60, ln. 3-8). The fuel cell is an electrochemical sensor inside the device. (Hearing Tr. Pg 60, ln. 9-11). Essentially, the gas in the nitrogen/ethanol solution is acting like a person's breath sample. (Hearing Tr. Pg 59, ln. 24- pg 60 ln. 2). In New York State, the acceptable standard deviation for the accuracy check is.10 but the NYPD employs a more exacting standard deviation of.003. (Hearing Tr. Pg 60, ln. 12-24).
If a machine appears to be out of order or malfunctioning, Detective Kessler or the other two technical supervisors within New York City would take it out of service and try to fix it. (Hearing Tr. Pg 65, ln. 9-14). While New York State mandates calibration of this machine once a year, NYPD calibrates each Dräger Alcotest 7510 device every six months. (Hearing Tr. Pg 62, ln. 7-8). Detective Kessler indicated this is the same frequency with which the Intoxilyzer 9000 is externally calibrated. (Hearing Tr. Pg 66, ln. 2-8).
The Intoxilyzer 9000 conducts a calibration check each time it is used. (Hearing Tr. Pg. 82, ln. 2-4). The Dräger device does not. (Hearing Tr. Pg. 90, ln. 5-9). However, Detective Kessler testified that as long as a Dräger unit calibrates correctly on both of its twice annual calibration tests, he can be confident that it was correctly calibrated during the intervening period, since a unit wouldn't go out of calibration and then spontaneously correct itself. (Hearing Tr. Pg 92, ln 6-12). On the other hand, if a Dräger unit does not calibrate correctly on one of its bi-annual tests, then all results since the last calibration are called into question. (Hearing Tr. Pg. 91, ln 20 through Pg. 92, ln 5).
The Dräger unit used in this case calibrated accurately both before and after the test in question. The calibration reports for the specific Dräger Alcotest 7510 that took the defendant's breath sample show that it was calibrated on April 4th, 2021; July 2nd, 2021; July 21st, 2021; November 9th, 2021, and May 25th, 2022. (Hearing Tr. Pg 68, ln. 14-22; pg. 69, ln. 21). These calibration records indicate that the machine the defendant blew into on December 18, 2021, was in proper working order on that date. (Hearing Tr. Pg 69, ln. 5-16; pg 70, ln. 2-9).
Detective Kessler testified that a properly administered breath test is one where the instrument is on the New York State and National Performing Products list ; the officer administering the test is properly trained in utilizing that instrument; the instrument is properly calibrated, and a proper observation period takes place. (Hearing Tr. Pg 74, ln. 14- 25- pg 75 ln. 1-10). Based on his observations of the video of the defendant's breath test, it was Detective Kessler's expert opinion that this test was properly administered even though the observation period was not captured on film. (Hearing Tr. Pg 75, ln. 17-23).
The transcript indicates that Detective Kessler referred to the "performing" products list. The Court believes this to be a transcription error; based on the context of the hearing, the Court is satisfied that Detective Kessler was, in fact, referring to the "conforming" products list.
On cross examination, Detective Kessler was asked to compare the technology of the Intoxilyzer 9000 and the Dräger Alcotest 7510. The Intoxilyzer 9000 uses infrared technology, while the Dräger Alcotest 7510 uses a fuel cell detector technology. (Hearing Tr. Pg 79, ln. 16- 25- pg 80 ln. 11). The Intoxilyzer 9000 requires what is called an "air blank" before a proper result can be rendered. (Hearing Tr. Pg 79, ln. 15-23). The Intoxilyzer does this using infrared technology to ensure that there is no residual air in the sample chamber prior to a person giving a breath sample. (Id.) The fuel cell technology used by the Dräger does not require an air blank or sensory blank because once it reads the ethanol in the breath sample, the machine clears the air to get ready for another sample. (Hearing Tr. Pg 87, ln. 12-18). Detective Kessler was clear that there is nothing to indicate a device that undergoes an air blank check is any more or less reliable than a machine that does not. (Hearing Tr. Pg 85 ln. 24-25-pg 86 ln. 1-8).
Ultimately, it was Detective Kessler's expert opinion at this hearing that if a Dräger Alcotest 7510 was administered properly, it would produce scientifically accurate results. (Hearing Tr. Pg 70, ln. 13-23).
Legal Analysis
The admissibility of the PBT in New York is a complex issue. Trial court and Appellate Division decisions contradict each other and leave this Court with no bright line rule about the reliability and admissibility of these machines. Indeed, Gerstenzang's "Handling the DWI Case in New York," widely recognized as the preeminent practitioner's handbook in this field, confusingly states that it is "well settled - and is generally conceded - that PBT evidence is inadmissible at trial", (Peter Gerstenzang & Eric H. Sills, Handling the DWI Case in New York § 7:9 at 194 [2020-2021 Ed]. This conclusion is ultimately contradicted by both appellate and trial level decisions admitting such results.
The Statutes
VTL § 1195 is entitled "Chemical Test Evidence". It states that in a prosecution for a violation of VTL § 1192, "the court shall admit evidence of the amount of alcohol or drugs in the defendant's blood as shown by a test administered pursuant to the provisions of section eleven hundred ninety-four of this article". (VTL § 1195[1]). VTL § 1194 then sets forth various requirements for the administration of a chemical test.
VTL § 1194(1)(b) governs field tests. This statute states:
"Every person operating a motor vehicle which has been involved in an accident or which is operated in violation of any of the provisions of this chapter shall, at the request of a police officer, submit to a breath test to be administered by the police officer. If such test indicates that such operator has consumed alcohol, the police officer may request such operator to submit to a chemical test in the manner set forth in subdivision two of this section." (VTL § 1194[1][b]).
Courts read this statute in conjunction with 10 NYCRR 59.1, which defines chemical tests as machines included on the "Conforming Products List of Evidential Breath Alcohol Measurement Devices" found in 10 NYCRR 59.4. (People v. Jones, 33 Misc.3d 181 [Crim Ct, New York County, 2011]; People v. Turner, 47 Misc.3d 100 [First Dept, App. Term, 2015]; People v. Aliaj, 36 Misc.3d 682 [Sup. Ct, New York County, 2012]).
Appellate Department Cases
People v. Thomas, 121 A.D.2d 73 [Fourth Dept, 1986] is the case relied upon by Gerstenzang for the proposition that PBTs are inadmissible at trial in New York. But Thomas is more nuanced than Gerstenzang would have the reader believe. In Thomas, the Fourth Department found it was reversible error to admit the results of the PBT to demonstrate intoxication. However, this was not the end of the Court's analysis. The Court went on to explain that "the Alco-Sensor evidence should have been excluded because as it was presented to the jury it served as proof of intoxication and the People failed to lay a proper foundation showing its reliability for this purpose. No expert testimony was submitted as to the accuracy of this device and the scientific principles on which it is based. The record is completely barren of scientific evidence which would establish the reliability of the test. Moreover, cases from other jurisdictions hold that the Alco-Sensor test is not reliable evidence of intoxication [citations omitted]" (People v. Thomas, 121 A.D.2d 73, 76) (emphasis added).
The Third Department has also found that PBT results are inadmissible where no evidence of reliability is provided, but again does not foreclose the possibility of admissibility if the reliability threshold is met. (People v. Kulk, 103 A.D.3d 1038 [Third Dept, 2013]). Kulk specifies that unless the scientific reliability of the PBT in question is demonstrated at trial, it should not be admitted for proof of intoxication. (People v. Kulk, 103 A.D.3d 1038, 1040 [Third 2013]). Significantly, the Third Department has also held that when a breath analysis machine is on the Conforming Products list in 10 NYCRR 59.4 it is in direct compliance with the requirements of VTL § 1194(4)(c), and thus is considered scientifically reliable. (People v. Hampe, 181 A.D.2d 238, 240 [Third Dept, 1992]).
Similarly, the Second Department does not entirely close the door to admitting the results of the PBT when its reliability is properly established. Relying on the decision in Kulk, the Second Department has found" [g]enerally, the result of a PBT, such as an Alco-sensor, 'is not admissible to establish intoxication, as its reliability for this purpose is not generally accepted in the scientific community'" (citing to People v. Kulk) (emphasis added) (People v. Krut, 133 A.D.3d 781, 784, [Second Dept, 2015]). In People v. Palencia, the Second Department found PBT results to be inadmissible where:
the limited testimony of the trooper did not establish the reliability of the PBT, nor did it explain the potential differences, if any, in the duration and volume of breath needed to be exhaled by the defendant when submitting to the PBT, as opposed to the chemical breath test administered at the State Police barracks that employed the Dräeger testing device. There was no testimony whatsoever regarding when the PBT device was last calibrated and, as such, no way of knowing whether the device was indeed functioning properly or whether its results were reliable (see People v. Boscic, 15 N.Y.3d at 500, 912 N.Y.S.2d 556, 938 N.E.2d 989)." (People v. Palencia, 130 A.D.3d 1072 [Second Dept, 2015]).
A recent 2022 decision from the Second Department, Appellate Term has actually found the results of a Dräger Alcotest to be admissible. In People v. Owen, 75 Misc.3d 127 (A) (App. Term, Second Dept, 2022), the Court referred to the Dräger as a "chemical test" and found it admissible where it was administered within two hours of arrest in accordance with VTL 1194[2]). (People v. Owen, 75 Misc.3d 127 [A] [App. Term, Second Dept, 2022]).
The First Department, Appellate Term has clearly held that PBT results are admissible. In particular the Appellate Term noted that because the instrument was "on the list of approved breath-testing instruments compiled by the New York State Department of Health (see 10 NYCRR 59.4[b]), was shown to be in proper working order when the test was performed and the test was properly administered (see People v. Boscic, 15 N.Y.3d 494, 498, 912 N.Y.S.2d 556, 938 N.E.2d 989 [2010]; People v. Murphy, 101 A.D.3d 1177, 1178, 956 N.Y.S.2d 207 [2012])", it was proper to admit it as evidence because its reliability was established. (People v. Turner, 47 Misc.3d 100 [First Dept, App Term, 2015]) .
The defendant argues, based on People v. Brisotti, 169 Misc.2d 672 [First Dept, 1996] and Mountain View Coach Lines, Inc. v. Storms, 102 A.D.2d 663 [Second Dept, 1984] that this Court is bound by the Second and Third Department decisions that excluded the PBT from evidence at trial. (People v. Palencia, 130 A.D.3d 1072 [Second Dept, 2015]; People v. Krut, 133 A.D.3d 781 [Second Dept, 2015]; People v. Kulk, 103 A.D.3d 1038 [Third Dept, 2013]). But this Court does not find the holdings of Kulk, Krut and Palencia to be in conflict with Turner. These Appellate Division cases stand for the proposition that the reliability of the PBT must be established before the device's results can be admitted into evidence, as does Turner.
Trial Court Cases
Consistent with the analysis above, lower court cases have characterized the very general rule of inadmissibility from the Second, Third and Fourth Departments as a "presumption" that can be rebutted. (People v. Aliaj, 36 Misc.3d 682 [Sup Ct, New York County, 2012]). These lower court opinions set forth varying, and sometimes overlapping, factors for a court to consider in deciding the admissibility of a PBT result. In People v. Jones, the Court set forth a multi- factor test for admissibility: 1) the device must be properly calibrated and in good working order and 2) a qualified officer must have properly administered the test. (People v. Jones, 33 Misc.3d 181, 186-187 [Crim Ct, New York County, 2011]). In addition, the device must be on the approved products list of the Commissioner of Health under 10 NYCRR 59.4 (Id.).
Expanding upon the Jones test, Aliaj suggested an additional five factor test requiring clear and convincing evidence of the device's reliability. (People v. Aliaj, 36 Misc.3d 682, 694). Adopting the three specific requirements enumerated in Jones, the Aliaj Court required an additional threshold finding to admit the PBT: the administering officer must have reasonable grounds to believe the defendant was driving while intoxicated or impaired. (People v. Aliaj, 36 Misc.3d 682, 694). If these four factors are met, the Court held that the People must still show by clear and convincing evidence that "the test has the same general indicia of reliability as a chemical test administered in a controlled environment". (Id.) To determine this, the Court included five additional factors that should be examined, which appear to contain some redundancies with the Jones test: 1) the observation period; 2) the operator's certification to perform the test; 3) the maintenance and calibration of the device; 4) the specifics of how the test was given in the case; and 5) the record of the test results. (People v. Aliaj, 36 Misc.3d 682, 694-697).
Perhaps most succinct is the test favored by the Court in People v. Brockington, 51 Misc.3d 1211 [A][Crim. Ct. New York County, 2016]). In this case, the Court, relying on the legislative intent of VTL § 1194(4)(c), set forth three factors to consider in admitting the results of the PBT: "(1) the testing device must be of a type that, when operated correctly, ordinarily produces scientifically reliable results; (2) the device was in good working order; and (3) the device was used properly on the date in question [citations removed]". (People v. Brockington, 51 Misc.3d 1211[A], *1).
Finally, People v. Santiago, a Supreme Court decision from Bronx County, relies on the factors set forth in another trial level case, People v. Hargobind, 34 Misc.3d 1237 (A) (Crim Ct, Kings County, 2012) and Aliaj. (People v. Santiago, 47 Misc.3d 195 [Sup Ct, Bronx County, 2014]). Similar to Brockington, the Court in Santiago places emphasis on whether the PBT model in question appears on the Conforming Products list. (Id. at 198). The Court's inquiry does not stop there, however; it takes an evaluative approach that combines the factors in Hargobind with the analysis in Aliaj:
"[T]he prosecution is required to establish all of the following: 1) that the device has been tested, producing a reference standard, within a reasonable time period prior to the test on the defendant; 2) that the device was calibrated and working properly on the day in question; 3) that these preparatory procedures, and the actual test on the defendant, were conducted by properly trained persons; and 4) that the field test on the defendant was conducted in conditions that would lead to scientifically reliable results, including, but not limited to, that the defendant was observed for at least fifteen to twenty minutes prior to the test to ensure that he had not ingested alcohol or had other contaminants in his mouth which would skew the test results. The waiting period has been described by at least one expert as the cornerstone' of chemical breath testing. Moreover, as has been observed, the conditions under which an officer performs a field test at the scene of a car stop are fraught with potential for error and must be carefully scrutinized. Distractions on a road or public street, the environment or weather, the degree of lighting and various other factors tend to complicate the administration of the test and undercut its reliability. See, People v. Aliaj, 36 Misc.3d 682, 693, 946 N.Y.S.2d 430") (People v. Santiago, 47 Misc.3d 195, 199 [Sup Ct, Bronx County, 2014]).
In Santiago, the court declined to admit the PBT results because the People could not meet their burden with respect to these foundational requirements, in particular the failure to conduct an observation period of the defendant before administering the test.
Some of the confusion in this area is caused by the structure of the Vehicle and Traffic Law. As Justice Conviser pointed out in Aliaj, the VTL drafters clearly assumed a two-step process: a PBT on the street to establish probable cause for arrest, followed by a chemical test conducted elsewhere. (People v. Aliaj, 36 Misc.3d 682, 692-93). However, it's equally clear that VTL § 1195[1], which defines a "chemical test," in no way precludes a PBT from qualifying as such a test, as long as it meets the requirements of VTL § 1194. (Id.)
The Court realizes that calling the VTL confusing is like saying the Earth is round, or the Sun is hot.
But what most of the trial judges whose decisions are described above have in common is that they were struggling with the admissibility of a test given pre-arrest and on the street, with little to no assurance of the test's reliability. There's a good reason for PBT's administered in this fashion to be presumptively inadmissible: it's hard to properly observe somebody for signs of burping on a dark New York City streetcorner at 2 a.m., much less administer a scientific test when confronting all manner of weather, bystanders, and other distractions. But, as the Aliaj court aptly pointed out, while PBT results should be presumptively inadmissible, that presumption can be overcome where the People can demonstrate the reliability of the results. (People v. Aliaj, 36 Misc.3d 682, 693). Particularly in the scenario where the PBT can meet the "hallmarks of a reliable chemical test", the results can be admissible. (Id. at 683) .
The Court would be remiss if it failed to address the cases in which the PBT was excluded. Respectfully, this Court declines to follow the reasoning in these cases. (People v. Reed, 5 Misc.3d 1032 [A] [Sup Ct, Bronx County, 2004); People v. Santana, 31 Misc.3d 1232 [A][Crim Ct, New York County, 2011]; People v. Schook, 16 Misc.3d 1113 [A] [Dist Ct, Suffolk County, 2007]; People v Codrington, 72 Misc.3d 1222 [A] [Crim Ct, New York County, 2021]; People v. Manzueta, 62 Misc.3d 187 [Crim Ct, Queens County, 2018). Not only is the Court not bound by these decisions, but the Court does not believe these cases conflict with this decision's finding where the reliability of the device is proven by the People at a hearing, as it was here. The Court does not believe that the portability of the machine alone makes it any less reliable than the Intoxilyzer 9000 or other chemical tests. (See People v. Jones, 33 Misc.3d 181 [Crim Ct, New York County, 2011].)
Synthesizing the various tests set forth by other trial courts, and reading those tests in harmony with the appellate decisions described above, this Court finds that the presumption against the admissibility of PBT results can be overcome if the People can show: 1) the machine is on the Conforming Products list under 10 NYCRR 59.4; 2) the officer has proper training in administering the machine; 3) the specific instrument is properly calibrated and in good working order, and employs a mechanism such as a system purge that ensures the sample is not compromised; 4) a proper twenty minute observation period occurred prior to the test being administered and 5) the test was properly administered in an environment that did not compromise the result. If the administration of the test is recorded by BWC or other device, that will also weigh in favor of admission.
This Case
Conforming Product List. The Dräger Alcotest 7510 appears on the Department of Health's Approved Products List. (10 NYCRR 59.4). This in and of itself satisfies the requirement that the machine be one that produces scientifically reliable results. (People v. Brockington, 51 Misc.3d 1211 [A], *2; People v. Lent, 29 Misc.3d 14, 16-17 [App. Term, 2d Dept, 2010]; People v. Hargobind, 34 Misc.3d 1237 [A][2012]). This acceptance by the Department of Health obviates the need for a Frye hearing to determine its scientific reliability. (People v. Brockington, 51 Misc.3d 1211 [A], *2; People v. Lent, 29 Misc.3d 14, 16-17 [App. Term, Second Dept, 2010]; People v. Hargobind, 34 Misc.3d 1237 [A][2012])) .
Neither party in this case requested that a Frye hearing be held.
The Administering Officer's Training. Detective Kessler successfully convinced the Court that Officer Rodriguez was certified to administer the Dräger Alcotest 7510. Detective Kessler trained Officer Rodriguez as a member of the Highway Patrol, and Officer Rodriguez went through seventy-five hours of DWI and breath test training after which he became a member of the Highway unit. (Hearing Tr. Pg 49, ln. 12-18). This included training on how to administer the Dräger Alcotest 7510. (Id.)
The Condition of the Machine. The People have established that the machine was in good working order at the time of the defendant's test. They admitted into evidence six records of calibration for the Dräger Alcotest 7510 used in this case. These calibrations took place every six months from April 4, 2021 through May 25, 2022 in accordance with NYPD guidelines and twice as often as required by New York State. (Hearing Tr. Pg 62, ln. 4-8). Each of these calibration reports demonstrated this specific Dräger Alcotest 7510 machine was operating within acceptable guidelines and in good working order. (Hearing Tr. Pg 69 ln 5-10).
The calibration report from May 25, 2022, six months after the defendant's arrest, is particularly significant. Detective Kessler indicated that because this calibration report showed the machine was in good working order, it must have been operating properly in the six months prior. (Hearing Tr. Pg 92, ln. 6-12). In other words, the machine would not be able to rectify an issue on its own if at some point it went out of order between calibration reports. (Id.) Detective Kessler, in his expert opinion, unequivocally stated that based on his review of the calibration records for this specific Dräger Alcotest 7510 it was in good working order on the date the defendant gave a sample. (Hearing Tr. Pg 89, ln. 19-23).
It also bears noting that while the Intoxilyzer 9000 uses different technology to ensure the reliability of its test results, that does not mean the software used by Dräger was any less reliable. While an Intoxilyzer 9000 has a function known as an air blank, which pushes residual air out of sample chamber prior to a test, the Dräger uses fuel cell technology to achieve essentially the same result. (Hearing Tr. Pg. 79, ln. 15-23- pg 80, ln. 1-11). Once the Dräger reads the ethanol in the breath sample, the machine clears the air to get ready for another sample. (Hearing Tr. Pg 87, ln. 12-18).
The Observation Period. The testimony at the hearing was uncontroverted that Officer Winters observed the defendant for twenty minutes prior to the test, during which time the defendant did not place anything in his mouth, eat, drink or burp. (Hearing Tr. Pg 15, ln. 7-25- pg 16 ln. 1-7). Furthermore, the observation period took place in a well-lit hospital, where the officer had a clear view of the defendant at all times. As Detective Kessler pointed out, this twenty-minute observation period is actually five minutes longer than required by New York State regulations and is exactly the same length of time as the observation period done in an IDTU room. (Hearing Tr. Pg 71, ln. 2-21). That the BWC did not capture the twenty-minute observation period is of no moment. Officer Winters convincingly testified to his first-hand account of observing the defendant for twenty minutes before he took the test.
The Administration of the Test. The People also established that the test was properly administered at Lincoln Hospital after the defendant's arrest. Detective Kessler as well as Officer Winters were both able to testify to the testing procedures employed at the hospital. Officer Winters could speak to what occurred at the hospital because he was present for it, and Detective Kessler was able to review the body worn camera of Officer Rodriguez administering the test.
Furthermore, the way the test was given in this case favors the admissibility of these results. The BWC showed this test was given in a "straightforward" manner. (People v. Aliaj, 36 Misc.3d 682, 697). The defendant received refusal warnings prior to giving his breath sample. (Hearing Tr. Pg 14, ln. 17-25- pg 14, ln. 1-4). He was provided a clean straw with which to blow into the machine. Upon calculating the defendant's BAC, the Dräger Alcotest 7510 immediately printed out a receipt that was signed by Officer Rodriguez and that contained the defendant's information, the name of Officer Rodriguez and the BAC result as well as the make and model of the machine used. (Hearing Tr. Pg 20, ln. 2-6; pg. 21 ln. 3-9). Additionally, the entire testing procedure, with the exception of the twenty-minute observation period, was captured on Officer Rodriguez's BWC and the test was administered within two hours of the defendant's arrest. ("Nevertheless, since the Dräger Alco test was administered to defendant within the relevant two hour time period (see Vehicle and Traffic Law § 1194 [2]), that test result was properly admitted as evidence of defendant's intoxication (see Vehicle and Traffic Law § 1195 [1]).") (People v. Owen, 75 Misc.3d 127 [A] [App. Term, Second Dept, 2022]).
Finally, one of the main reasons why the PBT was not admitted into evidence in Aliaj was the Court's concern about the integrity of the results when the test is given out in the field in an uncontrolled environment. ("The environment, whether the air, the possibilities for radio interference, the temperature or a location's physical layout cannot be precisely controlled. A defendant, all things being equal, is more easily monitored at a precinct") (People v. Aliaj, 36 Misc.3d 682, 693; see also People v. Hargobind, 34 Misc.3d 1237 [A] at *4). These very valid concerns did not exist in this case. This test was administered in the confines of a hospital where it was orderly, quiet and clean, unlike a roadside encounter.
This case concerns a PBT administered in a hospital, not on the street. The Court expresses no opinion as to whether a PBT administered on the street can ever overcome the presumption against PBT admissibility; such a determination would depend on the individual circumstances of the particular on-street test administration.
Conclusion
When the People can demonstrate "that defendants are properly observed prior to being tested and that tests are given by trained operators, using well maintained and serviced machines with thorough records", as they did here, the Court can be satisfied the PBT results are reliable. (People v. Aliaj, 36 Misc.3d 682, 698). The People will not always be able to do this: the streets of New York City are far from sterile laboratories. In this case, though, the use of the Dräger Alcotest 7510 was akin to that of the Intoxilyzer 9000, but for the fact that it was physically brought to the hospital rather than a stationary device at the precinct. Based on the foregoing and specific facts of this case - where the test was administered by a trained operator, in a controlled environment, with a well-functioning machine - the Court finds the Dräger Alcotest 7510 result to be admissible.
This constitutes the decision and order of this Court.