The defendant is charged with Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs in violation of VTL §§ 1192(1) and (3) and Turning Movements and Required Signals in violation of VTL § 1163(d). By motion filed on July 17, 2017, the People seek to admit the results of the Intoxilyzer S-D2 portable breath test ("PBT") administered to the defendant without any expert testimony on the reliability of the testing device for the purpose of proving the defendant's impairment and/or intoxication. On September 14, 2017, the defendant filed a response opposing the motion. For the following reasons, the People's motion is DENIED without prejudice to renew the motion to admit PBT results after the People have made an adequate showing of the reliability of the test and its results under the specific circumstances in which it was obtained, as discussed below.

A. Facts

The information alleges that on April 2, 2017 at about 3:18 a.m. at 9th Avenue and 61st Street in Kings County, Officer Artem Kuzmin saw the defendant driving a car, reversing out of a parking space then turning without signaling. After stopping the car, the officer noticed that the defendant had slurred speech, red watery eyes, an unsteady gait, and an odor of alcoholic beverage on his breath.

At the scene, Officer Kuzmin used an Intoxilyzer S-D2, a portable breathlyzer, to measure the defendant's blood alcohol content (see People's Affirmation in Support of Motion ¶ 7). The PBT registered a blood alcohol content of .10 and the defendant was arrested and taken to the 78th precinct at about 3:30 a.m. (id. ¶¶ 7, 10). Over six hours later, at about 10:00 a.m., an Intoxilyzer test was done on the defendant at the precinct, which measured the defendant's blood alcohol level to be 0.00 (id. ¶ 11).

The People assert in their supporting affidavit that the Intoxilyzer S-D2 used in at the scene by the officer was calibrated on January 11, 2017 (id. ¶ 8). Further, the People assert that Officer Kuzmin is certified by the New York State Department of Health as a Breath Analysis Operator (id. ¶ 9).

B. Motion To Admit Results Of The Portable Breath Test

The People assert that the results of a PBT such as the Intoxilyzer S-D2 should be admitted to prove the element of impairment/intoxication, and further that such admission need not be preceded by any foundation to establish the reliability of the PBT and its results (See People's Motion at pp. 5-6, 9). In support, the People cite to statutory authority mandating the admission of evidence regarding a defendant's blood alcohol content when obtained by an approved testing protocol, see VTL §§ 1194 and 1195(1), and to the fact that the equipment in question, the Intoxilyzer SD-2, is on the list of approved breath analysis devices issued by the New York State Department of Health (see VTL § 1194(4)(c) (directing the DOH to issue regulations on conducting chemical tests); 10 NYCRR § 59.4 (listing the "conforming products: for "evidential breath [alcohol] measurement devices")).

As defense counsel points out, however, the Second Department has a line of precedent for the proposition that PBT results are "generally" not admissible to establish intoxication due to the lack of established reliability for that purpose within the scientific community (see People v Palencia, 130 AD3d 1072, 1074 (2d Dept 2015), appeal dismissed 27 NY3d 1111 [2016]; People v Krut, 133 AD3d 781, 784 [2d Dept 2015], lv. denied 27 NY3d 1001 [2016]; People v MacDonald, 227 AD2d 672, 674 [2d Dept 1996]).

This precedent is not, however, as absolute as defense counsel contends (see Def. Resp. at p. 4). In Palencia, the trial court admitted the positive results of a PBT performed by a trained officer using a device on the Conforming Products List for the limited purpose of establishing the defendant's state of mind and consciousness of guilt when he was later ineffective in producing a viable breath sample for the breathalyzer test at the police station (see Palencia, 130 AD3d at 1073-74). There were, however, no limiting instructions given at the time of admission before the jury and the officer testified that he had been trained in operating the device and that it "seemed to be in working order" when it gave a positive result for alcohol. The Second Department found the officer's testimony irrelevant for the limited purpose the PBT results were introduced, and that testimony, together with the lack of any testimony as to the PBT's actual reliability and last calibration, "created an unacceptable risk that the jurors would improperly consider the PBT evidence for the impermissible purpose" of the defendant's intoxication (id. at 1073-75). There was no testimony as to any difference in volume or duration of breath exhalation required between the PBT and the breathalyzer, again leading to prejudicial speculation that it would be the same (id. at 1075). The Second Department held that "the prejudicial effect upon the jurors from hearing that the PBT detected the presence of alcohol substantially outweighed any probative value that this evidence might have had with respect to the defendant's state of mind at the time that he submitted to the chemical breath test at the State Police barracks" (id. at 1076).

The crux of the issue in Palencia was the prejudicial effect of the admission of PBT results whose reliability had not been proffered, let alone established, by the prosecutor, a holding echoed in other precedent (See e.g. People v Krut, 133 AD3d 781 [2d Dept 2015] (error to admit PBT results without limiting instructions or foundation as to reliability where defendant did not open the door to the same); People v Thomas, 121 AD2d 73, 76 [4th Dept 1986] (admission of alco-sensor results for ostensibly limited purpose of establishing reasonable cause for arrest was error, where not an element of the charge and again where no showing of its reliability), affirmed 70 NY2d 823, 825 [1987]). Here, however, the crux of the issue is whether PBT results could be deemed as sufficiently reliable to serve as direct evidence of intoxication.

While the precedent cited by the defense does not establish that PBT results are per se barred as direct evidence of intoxication, neither can such evidence be admitted as readily as the People propose. The People rely upon People v Hampe, 181 AD2d 238 (3d Dept 1992), where the Third Department held that the admission of a BAC result obtained from a "BAC Verifier" breathalyzer at the precinct was permissible without the submission of any expert testimony as to its reliability given the mandate of VTL § 1194(4)(c), its inclusion on the list of approved devices and "[a]bsent the submission of evidence casting doubt upon the accuracy or reliability of the BAC Verifier test" (Hampe, 181 AD2d at 241). Notably, however, the Hampe case did not involve a PBT performed in the field prior to arrest. Moreover, the Third Department has more recently stated that a field PBT "may be used to establish probable cause for an arrest" but "is not admissible to establish intoxication, as its reliability for this purpose is not generally accepted in the scientific community" (People v Kulk, 103 AD3d 1038, 1040 [3d Dept 2013] (finding no error in trial court's refusal to allow defendant to introduce low PBT result from scene to counter higher BAC result from breathalyzer)).

Under the guidance of the Second Department's holding in Palencia, this Court finds persuasive the trial court decisions that have held a finding of "reliability" sufficient for admission of PBT results cannot be met simply by the inclusion of the testing instrument on the list of conforming devices and by the assertion that the officer has been trained in its administration (see e.g. People v George, 48 Misc 3d 676, 678-79 [Crim Ct Kings County 2015]); People v Aliaj, 36 Misc 3d 682, 694 [Sup Ct NY County 2012]). Should the People want to admit PBT results, these courts have required the People to proffer evidence of reliability at a hearing on a range of factors, including but not limited to the following: the inclusion of the device in question on the conforming devices list; proper calibration; whether the test was properly given; whether the defendant was observed for 15-20 minutes prior to taking the test; the qualifications of the test operator; the testing, maintenance and operation of the testing device; how the test was actually administered in the field; and whether the PBT test results were recorded (see generally, Aliaj, 36 Misc 3d at 694 (summarizing factors raised by many trial courts)).

Accordingly, the People's motion to admit the results of the Intoxilyzer S-D2 test administered at the scene solely on the basis of the assertions made in the affidavit in support of the motion is DENIED. In the absence of further evidence on facts relevant to reliability of both this device and its administration at the scene in this case, this Court cannot opine as to whether the PBT results could be deemed sufficiently reliable to be admitted as direct evidence of intoxication. However, the People have leave to renew their request to admit the test results from the Intoxilyzer S-D2 as proof of intoxication upon further showing at a hearing before the trial court.

The foregoing constitutes the opinion, decision and order of the Court.