People v Boscic |
2009 NY Slip Op 51649(U) [24 Misc 3d 1227(A)] |
Decided on July 30, 2009 |
County Court, Sullivan County |
LaBuda, J. |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
This opinion is uncorrected and will not be published in the printed Official Reports. |
The People of the State
of New York
against Dragan Boscic, Defendant/Appellant. |
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