The Prosecutor's information charged defendant with Vehicle and Traffic Law § 1192(1) driving while ability impaired by alcohol. This court held Huntley/Dunaway and Johnson hearings on January 25, 2016. On January 26, 2016, this court found that the People had established probable cause. The case accordingly proceeded to trial. Right before the trial commenced, the People sought, via motion in limine, to introduce the results from defendant's portable breath test. Defendant objected. The court heard oral argument and rendered a decision admitting the evidence. This opinion serves to explain further the basis for the court's prior decision.

Vehicle and Traffic Law ("VTL") § 1195 governs the foundational requirements to admit evidence from a chemical test of a defendant's blood alcohol content:

[u]pon the trial of any action or proceeding arising out of actions alleged to have been committed by any person arrested for a violation of any subdivisions of [Vehicle and Traffic Law § 1192], the court shall admit evidence of the amount of alcohol and drugs in the defendant's blood as shown by a test administered pursuant to [VTL 1194] (emphasis added) (see VTL § 1195).

Nothing in this statute distinguishes among portable breath tests ("PBT"), the infra-red stationary breath tests that take place in the police precinct, or any other test for that matter.

In addition, VTL § 1194(4)[c] provides that the New York State Department of Health ("DOH") "shall issue and file rules and regulations approving satisfactory techniques or methods of conducting chemical analyses of a person's blood, urine, breath or saliva " Indeed, "the [*2]legislative intent was to give DOH definitive authority to approve tests for determining blood alcohol content for Vehicle and Traffic Law enforcement purposes" (People v Hampe, 181 AD2d 238, 241 [3d Dept 1992] citing Assembly Mem in Support; Letter of Counsel for Department of Health to Governor's Counsel, Governor's Bill Jacket, L 1986, ch. 876). Indeed, "[t]he device's acceptance by DOH and the Federal Department of Transportation/National Highway Traffic Safety Administration is sufficient to dispense with expert testimony of the accuracy and reliability of the test in establishing a foundation for the admissibility of the BAC Verifier test results" ([id]; see also People v Turner, 47 Misc 3d 100, 101 [App Term 1st Dept 2015]). VTL 1194(4)[c] also states "[i]f the analyses were made by an individual possessing a permit issued by the department of health, this shall be presumptive evidence that the examination was properly given."

Thus, pursuant to legislative mandate, a court must admit evidence of a defendant's blood alcohol content when it meets the foundational requirements for admissibility. These requirements are: (1) the testing device must be of a type that, when operated correctly, ordinarily produces scientifically reliable results; (2) the device was in good working order; and (3) the device was used properly on the date in question (see People v Mertz, 68 NY2d 136, 148 [1986], People v Freelund, 68 NY2d 699, 701 [1986], People v Hampe, 181 AD2d 238, 241 [3d Dept 1992]; People v Turner, 47 Misc 3d 100, 101 [App. Term, 1st Dept 2015]; People v Jones, 33 Misc 3d 181, 183-184 [Crim Court, New York County 2011]; see also People v Boscic, 15 NY3d 494, 498 [2010] ["admissibility of breath-alcohol analysis results remains premised on the People's ability to demonstrate, among other requirements, that the device was in proper working order' when it was used to test an accused"]; VTL 1194(4)[c] [permit DOH issues is presumptive evidence that test was "properly given"]).

In this case, the People established the proper foundation. First, the device, an FST, is of a type that ordinarily produces scientifically reliable results when one operates it correctly. It is undisputed that the FST is on the "Conforming Products List of Evidential Breath Alcohol Measurement Devices" and that DOH has approved the breath analysis instruments on this list for use in New York State (10 NYCRR 59.4 [a]). This obviates the need for expert testimony or a Frye hearing (see People v Hampe, 181 AD2d 238, 241 [3d Dept 1992]; People v Jones, 33 Misc 3d 181, 184 [Crim Court, New York County 2011]).

Moreover, the operator, Officer Little, not only has a certification from the Department of Health to operate and calibrate the device at issue, but actually calibrates all similar devices throughout New York County. The People also established that the device was in good working order on the date of defendant's test. The People introduced field inspection reports and calibration records from before and after defendant's test demonstrating that the machine was functioning properly. Finally, Officer Little, who has specialized training with respect to portable breath tests, demonstrated that he properly administered the test to defendant, including that he observed defendant for twenty minutes to ensure there was no mouth alcohol on defendant's breath.

People v Kulk, 103 AD3d 1038 (3d Dept 2013) is not to the contrary. Kulk involved a fairly unusual situation in that it was the defendant who sought to admit the .06 result of an alco sensor PBT to show lack of intoxication. The Appellate Division, Third Department, stated that, while the alco sensor, "may be used to establish probable cause for an arrest, it is not admissible to establish intoxication, as its reliability for that purpose is not generally accepted in the scientific community" (People v Kulk, 103 AD3d at 1040). However, in Kulk, both sides had [*3]already adopted the position that PBT results were NOT admissible to demonstrate intoxication (see Defendant/Appellant's brief in Kulk at 20 "[i]t is black letter law that the results of an alco-sensor test (breathalyzer) are clearly not admissible to show intoxication"). Accordingly, the Kulk court did not have before it a contested issue about whether or not PBTs are scientifically reliable. Were the Kulk court to have taken up this issue, certainly it would have at least mentioned it was departing from its own prior decision directly to the contrary in People v Hampe, 181 AD2d 238, 241 (3d Dept 1992). In Hampe, the same Appellate Division, Third Department held that the general acceptance of scientific reliability of an infra-red intoxylizer machine in use at the time "was established by reason of the specific inclusion of the BAC Verifier in the list of breath-testing instruments approved by the DOH in regulations promulgated pursuant to Vehicle and Traffic Law § 1194(4)(c)." Moreover, expert testimony and a Frye hearing were not necessary in Hampe because "the device's acceptance by DOH. . . is sufficient to dispense with expert testimony of the accuracy and reliability of the test in establishing a foundation for the admissibility of the BAC Verifier test results" (People v Hampe, 181 AD2d at 241). Unlike Hampe, Kulk is devoid of any discussion of the applicable statutes, including VTL § 1195, that directs the court to admit evidence of chemical tests wherever the statutory foundational requirements are met.

Moreover, at no point did the court in Kulk hold that defendant must prove via a Frye hearing that PBTs are scientifically reliable in general. Rather, it is more likely the holding in Kulk developed because the defendant did not even attempt to demonstrate that the machine was functioning properly on the day in question, or that it was on a list of acceptable devices (see generally, Defendant/Appellants brief in Kulk that makes no mention of either factor with respect to the PBT).

Defendant argues that, absent Appellate Division, First Department authority to the contrary, the decisions of the Appellate Division, Second Department in People v Palencia, 130 AD3d 1072 (2d Dept 2015) and People v Krut, 133 AD3d 781 (2d Dept 2015), along with the Appellate Division, Third Department in People v Kulk, bind this court. Defendant would be correct, were it not for People v Hampe — a case that also binds this court and is directly on point. As stated earlier, nowhere in Kulk does the Third Department ever mention it was departing from its holding in Hampe. Moreover, there are a litany of Court of Appeals decisions suggesting that Hampe is the correct approach (see People v Mertz, 68 NY2d 136, 147 [1986], People v Freelund, 68 NY2d 699, 701 [1986] People v Boscic, 15 NY3d 494, 498 [2010]). Finally, there is Appellate Term, First Department authority that also binds this court to the contrary. In People v Turner, 47 Misc 3d 100 (App Term, 1st Dept 2015), the court affirmed admission of the results of a PBT, where the device was on the DOH list of approved devices and was shown to be in good working order on the date of the test. Thus, the Appellate directive to this court is far from unanimous. Indeed, the weight of authority would appear to be contrary to Palencia and Krut.

Palencia and Krut rely heavily on Kulk. However, as discussed supra, the reliability of the PBT was not a contested issue in Kulk. Nor does Kulk mention the applicable statute, VTL § 1195, and the legislative directive to the trial court to admit chemical test evidence whenever foundational requirements are met. To the extent the Kulk line of cases rely on People v Thomas, 121 AD2d 73 (1987), that reliance is misplaced. There was no evidence in Thomas to establish the reliability of the test (see People v Thomas, 121 A2d 73, 76 [4th Dept 1986]; see also, People v Jones, 33 Misc 3d at 184).

Accordingly, the court grants the People's motion to introduce evidence of defendant's blood alcohol content obtained at the scene of his arrest.

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