February 13, 2008
Without question, the Breathalyzer model 900A is New York's weapon of choice in the war against drunk driving. Although it is relatively cheap and comparitively easy to maintain, the reason for the enormous popularity of this photometric breath tester is without a doubt the cloak of judicial reliability that it has been afforded by the Courts (see, People v Donaldson, (1971, 4th Dept) 36 AD2d 37, 319 NYS2d 172). The impact of judicial reliability is not easily overstated. One need only turn to the tortured history of infrared breathtesting in New York to see just how important the ability to admit the results of a breath test in the absence of expert testimony has been.
In People v Hampe, (1992, 3rd Dept) 181 AD2d 238, 585 NYS2d 861, a breath test conducted on a BAC Verifier7 revealed a result of .22%. An infrared absorption device, the BAC Verifier7 relies upon the degree to which a beam of infrared light is absorbed to both identify and quantify the presence of alcohol in the subject's breath. Far easier than a Breathalyzer7 to employ, the BAC Verifier7 is entirely software controlled.
Convicted of felony DWI, on appeal Hampe contended that the absence of expert testimony as to the operation and reliability of the BAC Verifier7 should have precluded admission of his result at trial. The Third Department disagreed. Writing for a unanimous bench, Judge Levine found Vehicle and Traffic Law '1194(4)(c) to be dispositive. The intent of this provision, which provides that the New York State Department of Health "shall issue and file rules and regulations approving satisfactory techniques or methods of conducting chemical analyses of a person's blood, urine, breath or saliva," was, in the words of the Court, "to give DOH definitive authority to approve tests for determining blood alcohol content for Vehicle and Traffic Law enforcement purposes. * * * [T]he device's acceptance by [the Department of Health] and the Federal Department of Transportation/National Highway Traffic Safety Administration is sufficient to dispense with expert testimony of the accuracy and reliability of the test in establishing a foundation for the admissibility of BAC Verifier test results" (id., at 240-241).
Was Hampe correct? We think not. Initially, the Hampe record was devoid of any proof at all as to the scientific basis or reliability of the device. Secondly, although the Hampe Court, by citation, seemed to acquiesce in the Frye/Leone (Frye v United States, (1923) 54 App DC 46, 293 F 1013; People v Leone, (1969) 25 NY2d 511, 307 NYS2d 430) rule that requires proof of "reasonable accuracy and general scientific acceptance" as a predicate for admission of scientific evidence, in Hampe there was neither. Not only was the record barren of scientific testimony, but unlike the Breathalyzer, which had achieved near universal status prior to the Fourth Department's decision in Donaldson, the BAC Verifier7 has seen such limited use that there exists no reported New York cases prior to Hampe.
Discussed above, principles of stare decisis dictate that Hampe be applied statewide unless one of the remaining departments or the Court of Appeals chooses to depart.
Should they? We believe so. The Hampe court was apparently of the belief that the legislature, by enacting '1194(4)(c), delegated the question of admissibility to the Department of Health. Resolution, therefore, lies in the propriety of the delegation. "The Legislature may constitutionally confer discretion upon an administrative agency only if it limits the field in which that discretion is to operate and provides standards to govern its exercise" (Rapp v Carey, 44 NY2d 157, 404 NYS2d 565, 375 NE2d 745).
While a "precise or specific formula" has not been mandated, admission of evidence of a technical or scientific nature has been rigidly, almost jealously, protected by the judiciary through the "reasonable accuracy and general scientific acceptance" test of People v Leone, supra. Vehicle and Traffic Law '1194(4)(c) provides only for the promulgation of standards approving "satisfactory techniques or methods." Assuming, arguendo, that the admission of breathtesting apparatus at trial is an appropriate field for delegation, blind acceptance upon the DOH or the NHTSA is nonetheless deficient inasmuch as '1194(4)(c) notwithstanding, there exists no direction to the agency as to what a satisfactory technique or method shall be.
The situation created by Hampe is not unlike that encountered by the Oregon Court of Appeals in State v Scott, (1993) 121 Or App 308, 854 P2d 991. In Scott, the results of a horizontal gaze nystagmus examination had been admitted without foundation. On appeal, the State contended that no foundation was necessary since HGN had been legislatively and administratively approved. Of interest in Scott is that Oregon has an implied consent statute for field sobriety testing that closely tracks the chemical test provisions of Vehicle and Traffic Law '1194(2)(a)(1). Comparable to Vehicle and Traffic Law '1194(4)(c), Oregon law also provides that a "field sobriety test" is a test approved by the Department of State Police. Although admission was ultimately deemed harmless, the Court refused to adopt the position that the legislative act of empowering the State Police to approve field sobriety tests was analogous to regulating admission at trial: "[a]lthough the legislature has delegated the determination of what constitutes a "field sobriety test" to the Department of State Police, that is not tantamount to a delegation to the agency to decide what evidence is admissible in a criminal trial" 121 Or App. at 312, 854 P.2d at 994.
Hampe is deserving of reconsideration. In the absence of expert testimony, the issue should be preserved.
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