This is an appeal from a judgment of conviction entered on the 9th day of July, 2008, in and by the Town of Bethel Justice Court. Defendant was convicted of Driving While Ability Impaired (alcohol) following a bench trial held on April 11, 2008, before Hon. Howard J. Block, Town Justice.

All papers are fully submitted including defendant's brief and memorandum of law, the people's brief and memorandum of law, and the Court's return and transcript of the audio taped bench trial. [*2]

The facts, construed most favorably to the People, indicate that the arresting officer, Constable McCarthy, observed Defendant's vehicle parked illegally on Route 17B in the Hamlet of White Lake, Town of Bethel, Sullivan County, at about 10:00 p.m. on the 3rd day of November, 2007. He then observed Defendant approach and enter the vehicle. Constable McCarthy approached the vehicle after the vehicle had rolled a few feet forward.

Pursuant to Constable McCarthy's request, the Defendant provided his license and registration.

Constable McCarthy testified that he detected the odor of alcohol from Defendant and that his eyes were glassy and bloodshot and his speech was slightly slurred. Defendant admitted to consuming three beers earlier in the day.

Defendant complied with Constable McCarthy's request that he exit his vehicle and perform field sobriety tests (FSTs). Constable McCarthy testified that Defendant hesitated and swayed slightly while performing the walk and turn test, wobbled a little while performing the one leg stand test, hesitated slightly while performing the finger to nose reciting the alphabet tests and actually passed Constable McCarthy's own "pick up the coin" test.

Constable McCarthy further testified that there was nothing unusual in the manner in which the Defendant entered or exited his vehicle, handled his paperwork or answered inquiries. He also testified that Defendant did not say when he consumed the three beers, that Defendant was a native of Yugoslavia, a country that utilizes the Cyrillic alphabet.

Constable McCarthy then arrested Defendant for Driving While Ability Impaired administered a breathalyzer test to Defendant utilizing a Datamaster breathalyzer. Over the objection of defense counsel, the Court admitted the result of that test, to wit, .07% blood alcohol content.

The certification offered for the admission into evidence of the Datamaster breathalyzer showed that it had been calibrated for accuracy on April 7th of 2007, almost seven months before its use in this case.

Defendant objected to the admission thereof because the certification of the calibration as to the accuracy of the breathalyzer was dated more than six months before its use in this case and because no evidence of weekly testing of the unit by any police agency was introduced.

Moreover, the certification of the simulator solution revealed that it would sometimes produce a reading in excess of the actual sample.

No other evidence was introduced. [*3]

The first question presented is whether the Court erred in allowing into evidence the results of the breathalyzer test where no evidence of its having been tested for accuracy (calibrated) for more than six months before its use at the time of the arrest herein and no evidence of periodic "in house" testing by a police agency was introduced.^[FN1]

There is ample legal authority requiring the calibration of the Datamaster breathalyzer within six months of its use in order for its reading to be admitted into evidence. People v Todd, 38 NY2d 755 (1975), People v Mickle, 187 Misc 2d 718, (Town of Canaan Justice Court, 2001). See, also, Gerstanzang's Handling the DWI Case in New York, §35:14, page 770, referring to this as the "six-month rule".

The Third Department case of People v English, 103 AD2d 979 (3rd Dept., 1984) declined to adopt the "six month rule" without the introduction of regulations requiring this.

Recognizing this, the New York State Division of Criminal Justice Services - Office of Public Safety has adopted this legal authority and requires the testing of the Datamaster breathalyzer every six months in order to insure its reliability. It also requires, "All instruments must have their accuracy checked weekly with three (3) consecutive accuracy checks . . . ." ^[FN2] This appears to satisfy the requirement of People v English, supra that a regulation recognize and adopt the six month rule of People v Todd, supra.

The failure of a proper foundation to be laid for the introduction of the result of a breathalyzer test prohibits the admissibility of that result, not the weight to be accorded that result. People v English, supra.

Thus, because evidence of the aforedescribed testing requirements were not offered, a proper foundation for the admission of the Datamaster breathalyzer results had not been laid and Defendant's objection to the introduction thereof should have been sustained and the conviction of Defendant could not be based upon the breathalyzer reading of .07%.

Because this finding is based upon the adoption and application of the "six month rule" it is unnecessary to address the significance of the failure of the People to introduce evidence of the weekly testing of the breathalyzer or the alleged erroneous reading thereof.

Nor does this decision purport to question the reliability of the test result of a breathalyzer properly calibrated for accuracy.

The People also seek to justify the conviction herein based solely upon the observations of Constable McCarthy.

While testimony in the absence of a breathlyzer result that describes impairment can be so persuasive as to overcome a defendant's presumption of innocence and convince the trier of fact of that defendant's guilt beyond a reasonable doubt can be the sole ground of a guilty verdict, the evidence herein did not reach that level of persuasion. Indeed, Constable McCarthy's testimony justified a finding that he had probable cause to arrest Defendant, but did not rise to the level of overcoming Defendant's presumption of innocence and justify his guilt beyond a reasonable doubt.

There was no testimony of Defendant appearing impaired in the manner in which he entered or exited his vehicle, responded to inquiries or handled his paperwork. While Defendant admitted to having consumed three beers, no evidence was introduced as to when he drank them. The manner in which he failed some of the field sobriety tests offered by Constable McCarthy was slight, if not marginal, and explainable by extraneous factors. Constable McCarthy did not observe the manner in which Defendant operated his vehicle.

While the observations of Constable McCarthy, if combined with the tendered .07% breathalyzer reading, could have justified a conviction for Driving While Ability Impaired, those observations, standing alone, could not.

Thus, this Court is compelled to reverse the conviction of Driving While Ability Impaired (alcohol) herein and dismiss said charge.

Based upon the above, it is

ORDERED, that defendant's appeal is granted, the conviction is reversed and all charges are dismissed. [*4]

This shall constitute the Decision and Order of this Court.

DATED: July 30, 2009

Monticello, NY

_________________________________

Hon. Frank J. LaBuda

Sullivan County Court judge

and Surrogate