The defendant is charged with one count each of Operating a Motor Vehicle While Intoxicated (VTL §1192.3) and Operating a Motor Vehicle While Impaired (VTL §1192.1). The defense has made a motion to preclude the People from introducing the result of the SD-2 Intoxilyzer portable breath alcohol test administered to the defendant. A response was filed by the People. For the foregoing reasons, the defense's motion to preclude introduction of evidence relating to the portable breath alcohol test is granted.

Relying on the statutory scheme and the Court of Appeals' ruling in People v. Thomas, 70 [*2]NY2d 823, 523 N.Y.S.2d 437 [1987], the court in People v. Reed ^[FN1], 5 Misc 3d 1032A, 799 N.Y.S.2d 163 [Bx. Co., Sup. Ct. 2004], held that "field test results cannot be introduced as evidence in chief of defendant's intoxication" (see People v. Reed, 5 Misc 3d 1032A, citing People v. MacDonald, 227 AD2d 672, 641 N.Y.S.2d 749 [App. Div., 3rd Dept. 1996], affd. 89 NY2d 908, 653 N.Y.S.2d 267 [1996]; People v. Wright, 1 Misc 3d 133A, 781 N.Y.S.2d 627 [App. Tm., 9th and 10th Jud. Dists. 2003]). Pursuant to VTL §1194, a field test serves to determine probable cause for an arrest and it is the chemical breath test that may be admitted at trial (see People v. Reed, 5 Misc 3d 1032A, People v. Schook, 16 Misc 3d 1113(A), N.Y.S.2d 898 [Dist. Ct., Suffolk Co. 2007], citing People v. Thomas, 70 NY2d 823; People v. Wright, 1 Misc 3d 133(A)). The ruling in People v. Hampe, 181 AD2d 238, 585 N.Y.S.2d 861 [App. Div., 3rd Dept. 1992], which has been relied upon is inapplicable to the instant facts given that the test in that case involved a chemical test given at the precinct, a field test was not at issue in that proceeding.

The statute differentiates between a preliminary field test and a chemical breath test, which is admissible at trial with the laying of a proper foundation (see People v. Reed, 5 Misc 3d 1032A, citing VTL §1194; see also, People v. Boscic [FN2], 15 NY3d 494, 912 N.Y.S.2d 556). According to VTL §1194 (2) (a) and (b), the initial breath test and the subsequent chemical test serve difference purposes, the first determines if alcohol was consumed and the second determines the level of alcohol consumed. The statute does not provide that a field test is admissible as evidence in chief of defendant's intoxication and no such language will be read into the statute by this court. That the Intoxilyzer S-D2 is listed as a devise approved to test blood alcohol content does not establish that the devise is admissible at trial to prove the defendant was legally intoxicated.

The portable SD-2 Intoxilyzer alcohol breath test is used as a screening tool in the field to determine if the defendant has consumed alcohol (see People v. Reed, 5 Misc 3d 1032A, People v. Schook, 16 Misc 3d 1113(A), People v. O'Reilly, 16 Misc 3d 775, 842 N.Y.S.2d 292 [Dist. Ct., Suffolk Co. 2007]). A roadside Alco-Sensor screening test "is sufficiently reliable for use in determining the presence of alcohol on a pass/fail basis", if "properly administered [an] Alco-Sensor test can help establish probable cause for the arrest of a DWI suspect" (People v. Harper, 18 Misc 3d 1107A, 856 N.Y.S.2d 25, at 4, [Justice Ct., Dutchess Co. 2007] citing People v. Thomas, 121 AD2d 73, 509 N.Y.S.2d 668, aff'd 70 NY2d 823, 523 N.Y.S.2d 437 [1987]; Smith v. Commissioner of Motor Vehicles, 103 AD2d 865, 866, 478 N.Y.S.2d 103 [App. Div., 3rd Dept. 1984]; People v. Schook, 16 Misc 3d 1113(A), Gerstenzang & Sills, §7:14, "Handling a DWI Case in New York — 2007-2008 Edition [Thomson-West, 2007]).

A portable alcohol screening devise may be used for a field test to determine probable cause for an arrest and its use in determining blood alcohol content is proper for that purpose given its approval, but "is not admissible at trial in a DWI prosecution because the test results are not sufficiently reliable to prove intoxication (i.e. the blood alcohol content reading)" (People v. Harper, 18 Misc 3d 1107A, at 4, citing People v. Thomas, 121 AD2d 73, see also, 10 [*3]N.Y.C.R.R. 59.4 (b) (4) (xxiii), People v. Reed, 5 Misc 3d 1032A, People v. Schook, 16 Misc 3d 1113(A), People v. Herrera, 23 Misc 3d 1104A, 885 N.Y.S.2d 712 [Dist. Ct., Suffolk Co. 2009]). As noted ^[FN3] in Reed, 5 Misc 3d 1032A, the Department of Health rules and regulations themselves recognize the difference between preliminary screening test and chemical test (see 10 N.Y.C.R.R. 59.4 (b) (4) (xxiii)).

The reliability of a field test is compromised precisely because it's done in the field, generally under less stable condition than that of the precinct. In states where field test are admitted a visual recording of the officer carrying out the test is provided to establish the reliability of that evidence. Similarly, in New York a video recording of the test is performed at the precinct to establish the reliability of its administration. In other states, where a portable breath test is done in the field it may be admitted in the People's case in chief because it is video recorded. Where a portable test is admissible there should be mechanisms in place to support its reliability. In DWI cases legislators have sought to ensure that the defendant is convicted on reliable evidence.

The portable SD-2 Intoxilyzer test and the Intoxilyzer 5000EN are used differently, the later is used at trial to establish the level of alcohol in the defendant's body while the first is used in the field to determine if alcohol was consumed. Further, to admit the results of the Intoxilyzer 5000EN, which is conducted at the precinct, the People must show that the devise was properly calibrated, generally within about a six month period (see People v. Boscic, 15 NY3d 494). As the defense notes, machines are fallible and to admit the result of such equipment there must be evidence that the devise was regularly serviced and maintained to ensure its effective operability.

Additionally, if portable breath test done in the field were admissible in the People's case in chief due process would require advising the driver that the result of such test could be used to convict. Vehicle and Traffic Law § 1194 (1) (b) provides that a driver cannot refuse a breath test and that a chemical test may be given if the initial breath test indicates that the driver has consumed alcohol. Further, if portable breath test were admissible at trial to prove the suspect was legally intoxicated there would be no cause to provide for a second test, if the first were sufficient. To admit evidence of a portable breath test in a case in chief would be to circumvent the law. For the People to be able to rely on a portable alcohol breath test conducted at the scene in the field to prove their case in chief there must be a different statutory scheme than that in existence. Consequently, the People may not admit the result of the portable breathilyzer test conducted in this case.

Accordingly, the defendant's motion to preclude evidence of the results of a portable breathilyzer test is granted.

This constitutes the decision, opinion and order of the Court.

Dated:New York, New YorkMay 16, 2011

________________________________The Honorable ShawnDya L. SimpsonJudge of the Criminal Court