Defendant is charged with violations of Vehicle and Traffic Law §1192(2) (Driving While Intoxicated Per Se) and §1192(3) (Driving While Intoxicated),as well as related VTL charges, in that on September 19, 2013, at 04:05 AM, in the vicinity of Fulton Street and Clinton Avenue in Hempstead, he operated a motor vehicle while intoxicated by alcohol as revealed by a BAC result of 0.13%. After an investigation and arrest at the scene, defendant was transported to Central Testing (CTS) where he arrived at 5:08 AM. The assigned breath technician, Peter Martino, began his observation of the defendant pursuant to established protocols at 5:38 AM. At 5:49 Officer Martino escorted the defendant to the bathroom at defendant's request, and they returned to the observation area 1 to 2 minutes later. At 5:58 AM defendant consented to take a breath test and he was subsequently escorted to the test room by Officer Martino who began a diagnostic run of the instrument, the Intoxilyzer 5000en at 6:02 AM. The test was conducted at 6:03 AM and yielded a BAC result of 0.13%. On February 5, 2014 Officer Martino lost a battle with cancer and died.

At a pre-trial conference the Court suggested that the parties look into whether or not the breath test results could be admitted or not without live testimony from Officer Martino. The question in the Court's mind initially was whether admission of the breath test results, as reflected on the breath card mechanically produced by the testing instrument, was barred by the US Supreme Court's confrontation decision in Crawford and its progeny. After receiving written submissions from both sides it became apparent that more specific information regarding the operation and capabilities of the Intoxilyzer 5000en was necessary before that question could be answered, and the court conducted a [*2]hearing in the nature of a motion in limine to resolve the issue. At the outset of the hearing, the goal was to determine whether or not the People could present adequate testimony pursuant to People v. Hao Lin, 46 Misc 3d 20 to permit substitute testimony for the admission of Officer Martino's certified test results. As the hearing progressed the testimony presented began to focus on the degree to which the test results depended upon the skill, judgment, and accuracy of Officer Martino's human input as opposed to representing raw data. At this point, some understanding of the Supreme Court's decisions in Crawford v. Washington, 541 U.S. 36 (2004), Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2008) and Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011) and there progeny is necessary.

In Crawford, the court addressed the admissibility of defendant's wife's out-of-court statement to police regarding the circumstances under which the defendant stabbed another man in a dispute involving the victim's alleged attempt to rape the defendant's wife. After tracing the history of the right to confrontation regarding ones accusers in a criminal case, the Court held that where the evidence is "testimonial" in nature, the confrontation clause requires that the accuser testify in person unless the declarant is unavailable and the defendant has had a prior opportunity to cross-examine him. Evidentiary rules regarding court created exceptions for statements which are perceived by trial courts to be reliable due to the circumstances under which they were made would no longer excuse a denial of the right to confrontation in a criminal case.

In Melendez-Diaz v. Massachusetts, the Supreme Court held that the admission of certificates regarding the results of the laboratory analysis of some drugs, which verified their identity as cocaine and their quantity and were created to serve as evidence at trial, without the testimony of the analyst who conducted those tests, violated the confrontation clause of the US constitution as they constituted "testimonial" evidence.

In Bullcoming v. New Mexico, defendant was arrested for driving while intoxicated and a sample of his blood was taken pursuant to a warrant and analyzed by a state laboratory forensic analyst. At trial it was revealed that the analyst had been placed on unpaid leave for undisclosed reasons. His report was admitted as a business record and another analyst, familiar with testing device and laboratory procedures, was called to testify. In this case, the Court observed that the analyst's certification reported more than a mere number from a testing device but that the blood sample was received in tact, with the seal unbroken, and that a precise protocol was followed in its testing. The Court noted that "these representations, relating to past events and human actions not revealed in raw, machine-produced data, are meet (sic) for cross-examination." The Court found it significant that no reason for the analysts' replacement was offered, leaving open the possibility that those reasons may have involved issues of competence, reliability or [*3]honesty. It also noted that the operation of the instrument used, a gas chromatograph, required specialized knowledge and training and that human error can occur at each stage of the test process which would not be reflected in raw data. The Court held that the confrontation clause is not satisfied by calling one witness to be cross-examined about another witness' statements. Interestingly however, Justice Sotomayor, in a concurring opinion discussing specific issues not decided in that case, noted that the trial court admitted into evidence more than the mere raw data from the testing instrument but other facts as well, including the state of the evidence when received and the procedures used to test it. In addition, and very significantly, the Justice noted that in that case, the state did not allege that the testifying witness could offer his own independent opinion concerning the defendant's blood alcohol content based upon the raw data produced by the gas chromatograph.

Finally, in People v. Hao Lin, 46 Misc 3d 20, an Appellate Term of the Second Department reversed a conviction based upon testimony of a "surrogate" witness who was not the original technician who administered the test, because the substitute witness, who observed most of the test, did not observe the instrument reading of the temperature of the simulator solution and there was no evidence that the machine would shut itself down or otherwise abort the test if the temperature was outside the required range, which would lead to an inaccurate reading. This was a significant void in the proof because if the simulator temperature is outside the acceptable range it will skew the results. As will be discussed below, that question was resolved at the hearing in this matter by the testimony of retired officer Brigandi who testified that the instrument does in fact abort the test where the temperature is not in the required range and, additionally, that in any event he personally examined the instrument in question here and found the simulator solution was in fact maintained at the proper temperature. Regarding confrontation, it is also important to note that the Hao Lin Court observed:

It appears that if the Court were satisfied that the instrument was functioning properly, including the solution simulator, the test results would have been admitted, even absent the technician who actually administered the test.

To allow for proper comparison of the facts in this case with established case law, it should be noted that the certification at the bottom of the breath card produced by the instrument and signed by Officer Martino in this case states:

The "record" involved in this case is not a report or a summary of the findings of Officer Martino, or any document prepared by Officer Martino, but rather it is merely the breath card, the raw data mechanically produced by the instrument.

Nassau County Police use a 12 step operational checklist. They are:

1.Turn on intoxilyzer and simulator/already on.

2.Subject under observation for 20 minutes/did not eat, drink, smoke, vomit or regurgitate.

3.Observe display/push button to start test/verify time and date.

4.Push green button/Insert test card/enter information re date, subject ID, etc.

5.Observe display: Air Blank

6.Check simulator temperature ______Degrees C.

7.Observe display Cal Check

8.Observe display Air Blank

9.Observe display Please Blow/Listen for tone to stop

10.Secure breath sample

11.Observe display Air Blank

12.Test complete. Automatically prints Test Record

FINDINGS OF FACT

Police officer Cardone, the arresting officer, testified that he observed the defendant during the same period that officer Martino did and that the defendant did not eat, drink, put anything in his mouth or regurgitate during that time.

The hearing testimony of retired officer Brigandi, the former supervisor of Nassau County's Central Testing Unit, clearly established that the instrument used in this case to test the defendant's breath was the Intoxilyzer 5000en. The instrument fully re-calibrates itself and will either abort or produce an error message if any of its parts are not functioning properly or an insufficient breath sample is obtained. Most importantly, the question unanswered by the record in Hao Lin, namely whether the instrument would, if the simulator temperature was out of the accepted range, abort the test, was answered in the affirmative. This instrument measures the simulator solution temperature in question and will not complete the test if the temperature is out of the acceptable range. In addition, it was clearly established that the temperature was in the proper range during this test for another reason as well. The instrument will re-calibrate itself but it will not repair itself. Officer Brigandi examined this very instrument a few hours after the test in this case and found the simulator temperature was properly maintained. If it was proper when examined it was proper during the test because the instrument does not repair itself.

In addition to the internal check of the simulator solution, the instrument automatically purges the instrument and performs checks to rule out any interference from ambient air prior to the test. Each of the above "check" and "observe" steps is electronically monitored and a test will not be completed if the instrument is not functioning properly. The instrument is also programed with a slope detector designed to detect mouth alcohol and rule out a skewed result produced by mouth alcohol which has a distinct profile. In a normal profile, the reading climbs as breath from the lungs reaches the instrument and levels off, yielding a proper reading. When mouth alcohol is present, the reading begins high and then decreases as the mouth alcohol is expelled. Sometimes, however, the instrument is fooled when the rise and fall meet. While the program is not foolproof, any expert can testify as to this fallibility issue which can arise from a failure to do a proper observation period. This is so because when the instrument's slope detector, designed to detect mouth alcohol is "fooled," a normal test result is provided by the instrument and the technician administering the test would observe no error on the breath card..

The testimony further established that there is absolutely no human evaluation or judgment involved in the administration of test itself. Unlike the blood analysis in Bullcoming, the entire process, from turning the instrument on, to the defendant breathing into the instrument, to receiving a breath card with a result, is fully automated. No independent judgment, observation, or interpretation of the results by the technician who [*5]conducts the test is involved. Accordingly, the technician, at least in this county, prepares no report regarding his conclusions as to the BAC level of the defendant's breath. He simply certifies that the card provided to the Court is an accurate copy of the card produced by the instrument. For this reason the people take the position that they are seeking to introduce into evidence only the raw data reflected on the breath card from which a testifying expert can render his own opinion regarding defendant's BAC level at the time of the test.

Another issue raised at the hearing which the defense claims should bar admission of the test results is the requirement of an observation period prior to the administration of the test itself. At the outset, the Court notes that while certainly relevant to the mouth alcohol issue and the fallibility of the slope detector, the absence of a proper observation period is not fatal to the admission of the test results but goes only to the weight to be accorded the test result by the trier of the facts. (People v. Charlie Brown, 44 Misc 3d 127(A), App. Term 2nd Dept. 2014; People v. Lent, 29 Misc 3d 14, App. Term 2nd Dept. 2010; People v. Schuessler, 14 Misc 3d 30, App. Term 2nd Dept 2006)

Secondly, testimony was offered by the arresting officer regarding his observation of the defendant for the required 20 minutes prior to the test. Evaluation of that testimony is an issue of fact for the jury. 10 NYCRR 59.5 (b) provides:

Thirdly, the expert testimony here strongly suggests that mouth alcohol in this case is a non-issue. The defense alleges that defendant went to the bathroom at 05:49 AM and that he may have regurgitated at that time, though nothing in Officer Martino's papers supports that claim. Defendant was stopped at 04:05. If he did regurgitate at 05:49, there would have been little if any alcohol left in his stomach because, according to Officer Brigandi, alcohol is fully absorbed from the stomach into the bloodstream within two hours of ingestion. More importantly, his testimony indicates that it is a scientifically accepted fact that mouth alcohol is, in any event, dissipated from the mouth in 4 to 7 [*6]minutes. This defendant was tested some 14 minutes after his bathroom visit.

THE LAW

"Breath test results are admissible where the People "establish that the machine is accurate, that it was working properly when the test was performed and that the test was properly administered" (People v Campbell, 73 NY2d 481, 484 [1989]; see People v Boscic, 15 NY3d 494, 497 [2010]; People v Mertz, 68 NY2d 136, 148 [1986]; cf. People v Baker, 51 AD3d 1047, 1049 [2008]; People v Grune, 12 AD3d 944, 945 [2004], lv denied 4 NY3d 831 [2005])." (People v. Murphy, 101 AD3d 1177) In this matter, evidence was presented to satisfy this court that the instrument self calibrated and was accurate and working properly, as evidenced by the breath card, produced without asterisk or error message, and that therefore the test was properly administered. The evidence also establishes that there was a proper a period of observation prior to the test. Not one of the 12 steps followed by the technician actually involves the use of any judgment or evaluation. He presses a button to start the machine. He observes various displays as the instrument goes through its self-calibration tests, (the failure of anyone halting the test), he directs the defendant to blow into the instrument, and a measurement result is printed out.

While the issue of "surrogate testimony" remains somewhat up in the air, (compare Raucci and Hao Lin below) there is a line of cases which stand for the proposition that where raw data is produced by an instrument operated by a technician who is no longer available for cross examination, another expert can review that raw data and testify as to his own opinion based on that raw data, without running afoul of Crawford and the confrontation clause. (People v. Raucci, 109 AD3d 109, 3rd Dept. 2013; People v. Rios, 102 AD3d 473, 1st Dept. 2013; People v. Vargas, 99 AD3d 481, 1st dept. 2012)

In the Raucci case, the First Department drew a distinction where one analyst testifies to the conclusions of a non-testifying analyst, citing Bullcoming, and one where an expert analyst testifies to his own conclusions from raw data gathered by another analyst. The Raucci court held:

Here, however, no surrogate testimony was adduced at defendant's trial and, therefore, no Crawford violation occurred. Although the analyst in question indeed based his opinion upon raw data that was generated—in part—by another chemist in the same lab, a review of the record makes clear that, among other things, the testifying analyst drew his own scientific conclusions from such data; those conclusions, [*7]in turn, were embodied in the expert report that the testifying analyst authored. Additionally, even assuming that the raw data qualifies as testimonial evidence within the meaning of Crawford—an issue we need not address—neither the data itself nor any conclusions reached or opinions held by the nontestifying analyst were entered into evidence at trial, and the analyst who did opine as to the composition of the substances at issue testified and was subject to cross-examination (see People v Brown, 13 NY3d at 340). Under these circumstances, defendant's right of confrontation was not violated simply because the People's expert "made reference to data gathered by [a] nontestifying [analyst]" (People v Vargas, 99 AD3d 481, 481 [2012]; see People v Rios, 102 AD3d at 475; compare Bullcoming v New Mexico, 564 US at — - &mdash, 131 S Ct at 2713-2714; Melendez-Diaz v Massachusetts, 557 US at 309-311).

The Rios Court came to a similar conclusion holding:

As an alternative holding, we reject defendant's Confrontation Clause claim on the merits. A fair reading of the analyst's testimony establishes that she made her own independent comparison between defendant's DNA profile and the DNA recovered from semen stains on the victim's underwear. The record does not support defendant's assertion that the witness merely reported on or agreed with a comparison made by others in her office. Thus, the witness did not merely provide surrogate testimony that failed to satisfy the Confrontation Clause (compare Bullcoming v New Mexico, 564 US &mdash, &mdash, 131 S Ct 2705, 2709-2710 [2011]).

Finally, the First Department in the Vargas case held clearly and concisely that:

Defendant's right of confrontation was not violated by testimony by the People's expert DNA analyst that made reference to data gathered by nontestifying technicians (see People v Brown, 13 NY3d 332 [2009]). Williams v Illinois (567 US &mdash, &mdash, 132 S Ct 2221, 2242-2244 [2012]) provides further support for the proposition that the DNA evidence in this case did not violate the Confrontation Clause.

In this Court's view, the California Supreme Court got it right in People v. Lopez, 286 P.3d 469, a case remarkably on point with the instant matter, when it held:

In so holding, the California Supreme Court followed the holding in U.S. v. Moon,512 F.3d 359 (2012), cert den. 555 US 812 where the circuit court held:

In turn, the circuit court in Moon followed it earlier precedent in United States v. Washington, 498 F.3d 225(2007) cert den. 557 US 934 wherein the court held:

More recently, the California circuit court dealt with this precise issue in U.S. v. Maxwell, 724 F.3d 724, (2013) Cert den. 134 S. Ct 2660 where the court held:

Two recent Second Department decisions also support this view that an expert witness may testify as to his opinion by reviewing raw data compiled by a non-testifying technician without offending a defendant's confrontation rights under Crawford. (People v. Gonzalez, 120 AD3d 832 [2014]; People v. Cartagena, 126 AD3d 913 [2015])

As noted by the Court in Cartagena:

For the foregoing reasons, the Court holds that Police Officer Cardone may testify regarding his pre-test observation of the defendant. The Court further holds that the breath card may be introduced into evidence through officer Brigandi who may testify regarding the instrument in question, the Intoxilyzer 5000en, its theory, functioning, and safeguards, as well as anything regarding the administration of the test which he can infer from the breath card such as a proper purging of the instrument, checking for ambient contaminants, etc. He may also testify, based upon the raw data contained in the breath card, as to his own opinion regarding the defendant's BAC level at the time he was tested. He may not, of course, testify as to any opinion officer Martino may have come to.

The foregoing constitutes the decision and order of the Court.

ERIC BJORNEBY

April 15, 2015

Madeline Singas, Acting District Attorney

Kent V. Moston, Esq., Legal Aid Society