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Breathalyzer Tests and the Six Month Rule

February 13, 2008

Is there a "six-month" rule that must be met before a Breathalyzer7 test may be admitted?  Second only to the number of times that courts and counsel ponder over this question is the vagueness of its origins.  In People v Todd, (1974) 79 Misc2d 630, 360 NYS2d 754, the defendant appealed a conviction for driving with more than .10 per centum of alcohol in the bloodstream.  Paramount among the defendant's assignment of error was that the Breathalyzer7 device had not been calibrated within the six-month period preceding the administration of his test.  In reversing, the Delaware County Court commenced by examining the requirements established in People v. Meikrantz (1974, Broome County) 77 Misc2d 892, 351 NYS2d 549.  These requirements, essentially identical to those established by the Appellate Division, Fourth Department in People v Donaldson, (1971, 4th Dept) 36 AD2d 37, 319 NYS2d 172, provided the test would be admissible upon a showing "(1) that there was compliance with any statutory requirement; (2) that a specified type of breath testing device was used to analyze a breath sample and that such de­vice is scientifically reliable for measuring the percent of alcohol in the blood through a chemical analysis of a subject's breath; (3) that the testing de­vice was in proper working order; (4) that the person giv­ing and inter­preting the test was properly qualified; (5) that the chemi­cals used in the test (i.e., the ampoules used in a breathalyzer) were of the proper kind and mixed in the proper proportions; (6) that the test was properly conducted."

In finding that the Appellant's test did not adequately comport, the Coun­ty Court took note that the proof at trial was that the machine had not been calibrat­ed for more than six-months and was never turned off.  Taking apparent judicial notice "that the manufacturer's directions as to the operation of the machine require only that it be warmed up to a certain temperature for a period of at least 20 minutes before the test is administered," the Court found the fact that the machine had been continu­ously left on and had not been calibrated within a six-month period sufficient to "raise a reasonable doubt . . . as to the reliability of that particular machine."  This initial finding was adequate to resolve the issue of admissibility.  However, the Todd Court clouded the issue somewhat by analogizing biannual calibration to a similar require­ment for police vehicle speedometers and by citing out-of-state authority for the proposi­tion that a six-month calibration require­ment exists.

A source of true confusion, the decision also took judicial note "of the fact that the chemical solution tends to lose its strength over a period of time and is subject to chemical changes making the solution unre­liable particularly if it is light struck."  Ob­serving that the breath test operator had no knowledge as to the age of the ampoules or whether they had been subjected to random testing, the Court found that the failure to prove the chemicals adequately complied with Meikrantz, supplied an additional basis for reversal.

On appeal to the Court of Appeals, the issue was clouded further still.  In a brief memorandum decision (1975) 38 NY2d 755, 381 NYS2d 50, 343 NE2d 767, the Court held, "[t]he People failed to estab­lish that the breathalyzer apparatus had been timely calibrated; hence, the results of the breath test were inadmissible."  What, however, is timely?  Recalling that in Todd the proof at trial was that the machine had not been calibrated for more than six-months, a reasonable interpretation is that six-months is the cutoff point at which cali­bration must be shown.

Despite its seeming clarity, Todd has not met with universal acceptance.  In Peo­ple v Pompilio, (1987, Justice Ct) 137 Misc 2d 997, 522 NYS2d 761, the Court, citing dicta in People v Gower (1977) 42 NY2d 117, 397 NYS2d 368, refused to suppress Breathalyzer7 results in a series of cases in which the device had not been calibrated within six-months.  Gower, of course, did not deal with the so-called six-month rule.  Pompilio aside, it seems clear that in the absence of a pronouncement from the Court of Appeals, six-months is the rule of Todd.  The failure to show that a Breathalyzer7 machine has not been cali­brated within six-months of the defendant's test will preclude admission of the test at trial.

What about ampoules?  Will the failure to show that the ampoules have been tested within six-months of the defendant's test prevent the results from being received at trial?

Probably not; at least not now.  In Peo­ple  v Yocher, (1993, 4th Dept) - AD2d -, 602 NYS2d 290, the proof was that the certificate of ampoule analysis was dated nearly three years prior to the breathalyzer test.  The defendant, apparently citing Todd, contended that the test should not have been admitted.  Refusing to accept this contention, the Court concluded that "in the absence of proof that the ampoules have a limited shelf life or that the chemical com­position of the ampoule solution changes materially as a result of the passage of time, the certificate of ampoule analysis satisfied the People's burden of establishing that the ampoule solution was 'of the proper kind and mixed in the proper proportions.'"

Is Yocher correct?  While the holding will certainly govern in those trials held in the Fourth Department, one can still be left to wonder.

In People v Mertz, (1986) 68 NY2d 136, 506 NYS2d 290, the prosecution at­tempted to sustain a Breathalyzer7 test on appeal by arguing that certificates found inadmissible under CPLR 4518 when cou­pled with the testimony of the breathtest operator that the instrument was function­ing properly was a sufficient foundation for admission of the test results.  Rejecting this approach, the Court, with citation to Todd, held, inter alia, that there must be a show­ing that "the ampoules used with it had been tested within a reasonable period in relation to defendant's test" (Mertz, at p. 148).

The problem with Yocher is that it seemingly ignores the showing required by Mertz.  By shifting the burden to the defen­dant to come forward with proof that the ampoules are apt to change with time, there appears to be little left of the requirement that timely testing need be shown.

To what extent does Yocher prevail out­side the Fourth Department?  While it is true that in the absence of a contrary deci­sion of another Appellate Division, a deci­sion by one Department is binding upon all (see, Mountain View Coach Lines, Inc. v Storms, (1984, 2nd Dept) 102 AD2d 663, 664), this rule is obviously of no import if the Court of Appeals has pronounced a con­trary rule (Mountain View, supra).  In our humble opinion the Court of Appeals has.  Mertz established timely ampoule testing as a foundational requirement, and Todd de­fines timely as within six months.

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