Criminal Court of the City of New York, Bronx County, February 7, 2023

Darcel D. Clark, District Attorney (Michael Naughton of counsel), for the People.

The Legal Aid Society, Bronx (Mark Formichelli of counsel), for defendant.

For such a small device, much has been written about the portable breath test (PBT). Unfortunately, despite the volume of decisions concerning the PBT, there's a lot of confusion and inconsistency about the admissibility of its results at trial, much of it engendered by the leading treatise in the area, which stakes out an oversimplistic and inaccurate position on the issue.

In this case, the court was asked to answer a novel question: whether the results of a PBT taken on a Dräger Alcotest 7510 conducted postarrest in a hospital setting are admissible at trial. After reviewing the court file, conducting an evidentiary hearing and receiving legal arguments from the parties, as well as analyzing relevant case law, the court finds that under the specific facts of this case, the results are admissible.^[FN1]

According to the Criminal Court complaint, the defendant was arrested for an incident that occurred on December 18, 2021, at approximately 4:15 a.m. in The Bronx. The defendant's{**78 Misc 3d at 770} vehicle was involved in a collision with three other vehicles. The arresting officer, Officer Winters, observed the defendant had an odor of alcohol on his breath and watery eyes. The defendant denied drinking and refused to take a breathalyzer unless the other motorist also took one. He also indicated he wanted to call his lawyer. The defendant later submitted to a breath [*2]test which resulted in a .07% BAC.^[FN2]

The parties engaged in legal argument before the court regarding the admissibility of the PBT results at trial. The People's position was that the current legal landscape does not render the PBT results per se inadmissible if the results can be shown to be reliable. The defendant, on the other hand, urged the court to find the results inadmissible for lack of scientific reliability and to find that the holding in People v Turner (47 Misc 3d 100 [App Term, 1st Dept 2015]) is not binding on this court. After hearing the arguments from the parties, the court determined a hearing on the admissibility of the PBT would be appropriate in this case to further explore the reliability of the Dräger Alcotest 7510.

The court conducted an evidentiary hearing to determine the admissibility of the PBT results. The People called two witnesses: Officer Winters, as well as Detective Kessler of the Highway Patrol.

Officer Winters testified to his observations before and after the defendant's arrest. Based on the defendant's involvement in an accident that caused serious injuries, as well as his observations of the indicia of intoxication listed in the complaint, Officer Winters felt probable cause for driving while intoxicated was established, and he placed the defendant under arrest. (Hearing tr at 28, lines 4-7.) At the scene of the arrest, the defendant was offered the opportunity to give a breath sample using the Alco-Sensor FST, a type of PBT. (Hearing tr at 28, lines 8-12.) The defendant declined, saying he needed medical attention (hearing tr at 12, lines 17-18), and was transported to Lincoln Hospital.{**78 Misc 3d at 771}

At the hospital, the defendant refused a request to submit a blood sample for testing. (Hearing tr at 26, lines 18-24.) The defendant did indicate he was willing to give a breath sample. (Hearing tr at 26, line 25; at 27, line 6.) Officer Rodriguez from the Highway 1 Unit arrived at the hospital to administer a breath test. As a member of the Highway Unit, Officer Rodriguez was certified to administer the Dräger Alcotest 7510. (Hearing tr at 12, lines 5-10.)^[FN3] Before a subject gives a breath sample, he or she must be observed for a period of time to ensure no mouth alcohol impairs the integrity of the results. (Hearing tr at 71, lines 2-13.) Mouth alcohol can be created by the motorist eating, drinking, hiccupping or regurgitating. (Hearing tr at 71, lines 6-9.) When the NYPD gives blood alcohol tests at the 45th Precinct using the Intoxilyzer 9000, officers engage in a 20-minute observation period, which is five minutes longer than the state standard. (Hearing tr at 71, lines 14-21.) In this case, Winters and [*3]Rodriguez engaged in a 20-minute observation period of the defendant at the hospital. During this observation period, the defendant was not observed to place anything in his mouth. He was not observed eating, drinking or burping in any way. (Hearing tr at 17, lines 15-18.)

After the observation period, the defendant gave a breath sample on a Dräger Alcotest machine that resulted in a .07 reading.

Unlike an Alco-Sensor FST, the Dräger Alcotest connects to a printer that prints out the results of a sample. (Hearing tr at 19, lines 15-16.) The printout of the defendant's test, which was entered into evidence at the hearing, included the name and model of the PBT used for the sample, the defendant's name, Officer Rodriguez's name and signature, and the BAC result. (Hearing tr at 18, lines 1-13; at 21, lines 1-9.)

The People also called Detective Timothy Kessler at the hearing. Detective Kessler is assigned to the Highway Patrol where he is a citywide coordinator for the NYPD's DWI testing program. As a citywide coordinator, his responsibilities include assisting in overseeing the procedures and protocols within the NYPD, as well as calibrating the breath instruments used by the NYPD. (Hearing tr at 36, lines 14-17.) Additionally Detective Kessler is one of three certified technical supervisors{**78 Misc 3d at 772} within the NYPD Intoxicated Driver Testing Unit (IDTU). (Hearing tr at 36, lines 23-25.) As a technical supervisor, he calibrates and performs maintenance on the breath instruments owned by the NYPD. (Hearing tr at 36, line 21; at 37, lines 1-3.) Detective Kessler has performed approximately 2,500-3,000 breath tests on the Intoxilyzer 9000 and 5000EN. (Hearing tr at 37, lines 6-13.) Between the breath tests on these machines, as well as roadside breath tests, he estimates he has performed upward of 10,000 breath tests. (Hearing tr at 37, lines 14-18.) Detective Kessler writes and performs numerous trainings related to DWI offenses and arrests for the NYPD and other organizations around the country, including trainings on standardized field sobriety testing and advanced roadside impaired driver enforcement. (Hearing tr at 37, line 23; at 38, lines 1-16.) Detective Kessler has trained more than 20,000 officers in the administration and performance of chemical breath tests since February 2016. (Hearing tr at 39, lines 11-22.) Additionally, Detective Kessler has testified as an expert in three fields related to DWI arrests: the detection of individuals who are driving while intoxicated, the procedures and protocols of the NYPD in DWI arrests and the operation and administration of breath tests. (Hearing tr at 40, line 15; at 41, line 6.)

Detective Kessler also testified that he is responsible for overseeing eight IDTU facilities within the NYPD. (Hearing tr at 41, line 25; at 42, line 2.) At these facilities, Detective Kessler, along with his supervisor and other members of his team, calibrates and cleans the instruments and ensures the facilities are operational. (Hearing tr at 42, lines 5-10.) Detective Kessler is certified to maintain and calibrate various breath analysis instruments, including the Dräger Alcotest 7510. (Hearing tr at 42, lines 11-13.) The Dräger Alcotest 7510 is a roadside breath instrument used by both the NYPD Highway Patrol and the Force Investigation Unit. (Hearing tr at 42, lines 17-25.) Detective Kessler was trained directly by Dräger Safety over two to three days on how to maintain, calibrate, operate and work on the Dräger Alcotest 7510 to ensure the proper functioning of the machines. (Hearing tr at 43, lines 9-12.) In addition to being certified to operate and maintain this machine, Detective Kessler is also certified to teach others how to properly administer a chemical test analysis of a person's breath using the Dräger Alcotest 7510. (Hearing tr at 43, lines 21-24.){**78 Misc 3d at 773}

As a result of his extensive training in using the various breath instruments employed by the NYPD, as well as his vast experience and prior certifications as an expert, this court deemed [*4]Detective Kessler an expert in the administration of chemical test analysis of a person's breath and in the calibration, maintenance, operation and instruction of the Dräger Alcotest 7510, the Alco-Sensor FST and the Intoxilyzer 9000. (Hearing tr at 48, lines 14-20.)

At the hearing, the People introduced a Dräger Alcotest 7510 machine as a demonstrative exhibit. This was not the actual machine that calculated the defendant's breath sample, but it is the same model. (Hearing tr at 50, lines 24-25; at 51, lines 1-7.) Detective Kessler then explained the functioning of this machine to the court. When the instrument is turned on, it runs through a self-diagnostic test to make sure the machine is in proper working order and able to accept a breath sample for testing. (Hearing tr at 52, lines 15-19.) These self-checks are designed into the software of the machine, much like a computer when it is rebooted. (Hearing tr at 76, lines 8-13.) In the event an error is detected during this startup process, an error message would pop up on the screen and the machine would not allow the operator to proceed with testing. (Hearing tr at 52, lines 20-24.) The operator has no ability to override this error message should it occur. (Hearing tr at 52, lines 22-25.)

When the machine is initially turned on, it displays the voltage used, date, time, battery life and when it was last calibrated. (Hearing tr at 54, lines 18-22.) It also warms to a certain temperature through its internal warming device. (Id.) The machine will indicate when it needs to be calibrated next, and there is no way for the operator to manipulate that calibration date. (Hearing tr at 54, lines 23-25; at 55, line 2.) Once the internal diagnostic test is completed showing the machine is in proper working order, then the operator will attach a sealed mouthpiece to the machine. (Hearing tr at 55, lines 8-14.) The mouthpiece is attached to a port on the top of the instrument where it gets locked into place. (Hearing tr at 56, lines 3-7.) After this occurs the top of the machine will blink green, and the machine will say that it is "ready" to accept a breath sample. (Hearing tr at 56, lines 8-11.) The operator will then instruct the motorist how to give a breath sample, and the motorist will blow into the machine for approximately 7 to 10 seconds. (Hearing tr at 56, lines 13-17.) A flow sensor within the device detects whether someone is in fact blowing into the machine. (Hearing tr at 56, lines 18-21.){**78 Misc 3d at 774}

Each Dräger Alcotest 7510 comes with a printer, which uses infrared technology that will sync the printer up with any instrument that provides breath receipts. (Hearing tr at 53, lines 18-20.) After a breath test is done, the operating officer can connect the printer to the Dräger Alcotest 7510, and the printer will then print the specific test result. (Hearing tr at 54, lines 1-10.)

The Dräger Alcotest 7510 is externally calibrated by way of a gas nitrogen/ethanol solution, known as a dry gas standard. (Hearing tr at 56, lines 22-23; at 57, lines 13-15.) The dry gas standard must be stored in a controlled environment in a metal container at a specific temperature. (Hearing tr at 57, lines 19-25.) When Detective Kessler first receives a Dräger Alcotest 7510, he will inspect it physically to make sure it's in proper working order and intact. (Hearing tr at 58, lines 20-25.) After he turns the machine on, it will go through its self-diagnostic test to rule out any operational defects. (Hearing tr at 58, lines 20-25; at 59, lines 1-2.) Detective Kessler will then run additional calibration checks using the ethanol gas standard on the new machine by going into the menu function and performing an accuracy check, a calibration check and then a final accuracy check before sending the machine out into the field. (Hearing tr at 59, lines 4-8.) Detective Kessler will calibrate the machine to ensure that it is reading the dry gas standard sample at .10%. (Hearing tr at 59, lines 9-11.) Detective Kessler performed an actual calibration of the demonstrative Dräger unit in the courtroom.

If the machine gives a result that says the sample is at a .10, as it is calibrated to do, then the machine is working properly. (Hearing tr at 60, lines 3-8.) If the reading comes out as anything other than .10, then Detective Kessler knows the machine needs to be reprogrammed and he can change the calibration for the fuel cell inside the device to match the required result of .10. (Hearing tr at 60, lines 3-8.) The fuel cell is an electrochemical sensor inside the device. (Hearing tr at 60, lines 9-11.) Essentially, the gas in the nitrogen/ethanol solution is acting like a person's breath sample. (Hearing tr at 59, line 24; at 60, line 2.) In New York State, the acceptable standard deviation for the accuracy check is .10 but the NYPD employs a more exacting standard deviation of .003%. (Hearing tr at 60, lines 12-24.)

If a machine appears to be out of order or malfunctioning, Detective Kessler or the other two technical supervisors within{**78 Misc 3d at 775} New York City would take it out of service and try to fix it. (Hearing tr at 65, lines 9-14.) While New York State mandates calibration of this machine once a year, the NYPD calibrates each Dräger Alcotest 7510 device every six months. (Hearing tr at 62, lines 7-8.) Detective Kessler indicated this is the same frequency with which the Intoxilyzer 9000 is externally calibrated. (Hearing tr at 66, lines 2-8.)

The Intoxilyzer 9000 conducts a calibration check each time it is used. (Hearing tr at 82, lines 2-4.) The Dräger device does not. (Hearing tr at 90, lines 5-9.) However, Detective Kessler testified that as long as a Dräger unit calibrates correctly on both of its twice annual calibration tests, he can be confident that it was correctly calibrated during the intervening period, since a unit wouldn't go out of calibration and then spontaneously correct itself. (Hearing tr at 92, lines 6-12.) On the other hand, if a Dräger unit does not calibrate correctly on one of its biannual tests, then all results since the last calibration are called into question. (Hearing tr at 91, line 20, through 92, line 5.)

The Dräger unit used in this case calibrated accurately both before and after the test in question. The calibration reports for the specific Dräger Alcotest 7510 that took the defendant's breath sample show that it was calibrated on April 4, 2021; July 2, 2021; July 21, 2021; November 9, 2021; and May 25, 2022. (Hearing tr at 68, lines 14-22; at 69, line 21.) These calibration records indicate that the machine the defendant blew into on December 18, 2021, was in proper working order on that date. (Hearing tr at 69, lines 5-16; at 70, lines 2-9.)

Detective Kessler testified that a properly administered breath test is one where the instrument is on the New York State and National Performing Products list;^[FN4] the officer administering the test is properly trained in utilizing that instrument; the instrument is properly calibrated; and a proper observation period takes place. (Hearing tr at 74, lines 14-25; at 75, lines 1-10.) Based on his observations of the video of the defendant's breath test, it was Detective Kessler's expert opinion that this test was properly administered even though the observation period was not captured on film. (Hearing tr at 75, lines 17-23.){**78 Misc 3d at 776}

On cross-examination, Detective Kessler was asked to compare the technology of the Intoxilyzer 9000 and the Dräger Alcotest 7510. The Intoxilyzer 9000 uses infrared technology, while the Dräger Alcotest 7510 uses a fuel cell detector technology. (Hearing tr at 79, lines 16-25; at 80, line 11.) The Intoxilyzer 9000 requires what is called an "air blank" before a proper [*6]result can be rendered. (Hearing tr at 79, lines 15-23.) The Intoxilyzer does this using infrared technology to ensure that there is no residual air in the sample chamber prior to a person giving a breath sample. (Id.) The fuel cell technology used by the Dräger does not require an air blank or sensory blank because once it reads the ethanol in the breath sample, the machine clears the air to get ready for another sample. (Hearing tr at 87, lines 12-18.) Detective Kessler was clear that there is nothing to indicate a device that undergoes an air blank check is any more or less reliable than a machine that does not. (Hearing tr at 85, lines 24-25; at 86, lines 1-8.)

Ultimately, it was Detective Kessler's expert opinion at this hearing that if a Dräger Alcotest 7510 was administered properly, it would produce scientifically accurate results. (Hearing tr at 70, lines 13-23.)

The admissibility of the PBT in New York is a complex issue. Trial court and Appellate Division decisions contradict each other and leave this court with no bright-line rule about the reliability and admissibility of these machines. Indeed, Gerstenzang's "Handling the DWI Case in New York," widely recognized as the preeminent practitioner's handbook in this field, confusingly states that it is "well settled—and is generally conceded—that PBT evidence is inadmissible at trial" (Peter Gerstenzang & Eric H. Sills, Handling the DWI Case in New York § 7:9 at 194 [2020-2021 ed]). This conclusion is ultimately contradicted by both appellate and trial level decisions admitting such results.

The Statutes

Vehicle and Traffic Law § 1195 is entitled "Chemical test evidence." It states that in a prosecution for a violation of Vehicle and Traffic Law § 1192, "the court shall admit evidence of the amount of alcohol or drugs in the defendant's blood as shown by a test administered pursuant to the provisions of section eleven hundred ninety-four of this article." (Vehicle and Traffic Law § 1195 [1].) Vehicle and Traffic Law § 1194 then sets forth various requirements for the administration of a chemical test.{**78 Misc 3d at 777}

Vehicle and Traffic Law § 1194 (1) (b) governs field tests. This statute states:

"Every person operating a motor vehicle which has been involved in an accident or which is operated in violation of any of the provisions of this chapter shall, at the request of a police officer, submit to a breath test to be administered by the police officer. If such test indicates that such operator has consumed alcohol, the police officer may request such operator to submit to a chemical test in the manner set forth in subdivision two of this section." (Vehicle and Traffic Law § 1194 [1] [b].)

Courts read this statute in conjunction with 10 NYCRR 59.1, which defines chemical tests as machines included on the "Conforming Products List of Evidential Breath Alcohol Measurement Devices" found in 10 NYCRR 59.4. (People v Jones, 33 Misc 3d 181, 183 [Crim Ct, NY County 2011]; People v Turner, 47 Misc 3d 100 [App Term, 1st Dept 2015]; People v Aliaj, 36 Misc 3d 682 [Sup Ct, NY County 2012].)

Appellate Department Cases

People v Thomas (121 AD2d 73 [4th Dept 1986]) is the case relied upon by Gerstenzang for the proposition that PBTs are inadmissible at trial in New York. But Thomas is more nuanced than Gerstenzang would have the reader believe. In Thomas, the Fourth [*7]Department found it was reversible error to admit the results of the PBT to demonstrate intoxication. However, this was not the end of the Court's analysis. The Court went on to explain that

"the Alco-Sensor evidence should have been excluded because as it was presented to the jury it served as proof of intoxication and the People failed to lay a proper foundation showing its reliability for this purpose. No expert testimony was submitted as to the accuracy of this device and the scientific principles on which it is based. The record is completely barren of scientific evidence which would establish the reliability of the test. Moreover, cases from other jurisdictions hold that the Alco-Sensor test is not reliable evidence of intoxication" (People v Thomas, 121 AD2d 73, 76 [emphasis added and citations omitted]).

The Third Department has also found that PBT results are inadmissible where no evidence of reliability is provided, but again does not foreclose the possibility of admissibility if the{**78 Misc 3d at 778} reliability threshold is met. (People v Kulk, 103 AD3d 1038 [3d Dept 2013].) Kulk specifies that unless the scientific reliability of the PBT in question is demonstrated at trial, it should not be admitted for proof of intoxication. (People v Kulk, 103 AD3d 1038, 1040 [3d Dept 2013].) Significantly, the Third Department has also held that when a breath analysis machine is on the Conforming Products List in 10 NYCRR 59.4 it is in direct compliance with the requirements of Vehicle and Traffic Law § 1194 (4) (c), and thus is considered scientifically reliable. (People v Hampe, 181 AD2d 238, 240 [3d Dept 1992].)

Similarly, the Second Department does not entirely close the door to admitting the results of the PBT when its reliability is properly established. Relying on the decision in Kulk, the Second Department has found "[g]enerally, the result of a PBT, such as an Alco-sensor, 'is not admissible to establish intoxication, as its reliability for this purpose is not generally accepted in the scientific community' " (People v Krut, 133 AD3d 781, 784 [2d Dept 2015] [emphasis added], citing People v Kulk). In People v Palencia, the Second Department found PBT results to be inadmissible where:

"the limited testimony of the trooper did not establish the reliability of the PBT, nor did it explain the potential differences, if any, in the duration and volume of breath needed to be exhaled by the defendant when submitting to the PBT, as opposed to the chemical breath test administered at the State Police barracks that employed the Draeger testing device. There was no testimony whatsoever regarding when the PBT device was last calibrated and, as such, no way of knowing whether the device was indeed functioning properly or whether its results were reliable (see People v Boscic, 15 NY3d at 500)." (People v Palencia, 130 AD3d 1072, 1075 [2d Dept 2015].)

A recent 2022 decision from the Appellate Term, Second Department has actually found the results of a Dräger Alcotest to be admissible. In People v Owen, the court referred to the Dräger as a "chemical test" and found it admissible where it was administered within two hours of arrest in accordance with Vehicle and Traffic Law § 1194 (2). (People v Owen, 75 Misc 3d 127[A], 2022 NY Slip Op 50368[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022].){**78 Misc 3d at 779}

The Appellate Term, First Department has clearly held that PBT results are admissible. In particular the Appellate Term noted that because the instrument was

"on the list of approved breath-testing instruments compiled by the New York State Department of Health (see 10 NYCRR 59.4 [b]), was shown to be in proper working order when the test was performed and the test was properly administered (see People v Boscic, 15 NY3d 494, 498 [2010]; People v Murphy, 101 AD3d 1177, 1178 [2012])" it was proper to admit it as evidence because its reliability was established. (People v Turner, 47 Misc 3d 100, 101 [App Term, 1st Dept 2015].)^[FN5]

Trial Court Cases

Consistent with the analysis above, lower court cases have characterized the very general rule of inadmissibility from the Second, Third and Fourth Departments as a "presumption" that can be rebutted. (People v Aliaj, 36 Misc 3d 682 [Sup Ct, NY County 2012].) These lower court opinions set forth varying, and sometimes overlapping, factors for a court to consider in deciding the admissibility of a PBT result. In People v Jones, the court set forth a multifactor test for admissibility: (1) the device must be properly calibrated and in good working order and (2) a qualified officer must have properly administered the test. (People v Jones, 33 Misc 3d 181, 186-187 [Crim Ct, NY County 2011].) In addition, the device must be on the approved products list of the Commissioner of Health under 10 NYCRR 59.4. (Id.)

Expanding upon the Jones test, Aliaj suggested an additional five factor test requiring clear and convincing evidence of the device's reliability. (People v Aliaj, 36 Misc 3d 682, 694.) Adopting the three specific requirements enumerated in Jones, the Aliaj court required an additional threshold finding to admit the PBT: the administering officer must have reasonable grounds to believe the defendant was driving while intoxicated{**78 Misc 3d at 780} or impaired. (People v Aliaj, 36 Misc 3d 682, 694.) If these four factors are met, the court held that the People must still show by clear and convincing evidence that "the test has the same general indicia of reliability as a chemical test administered in a controlled environment." (Id.) To determine this, the court included five additional factors that should be examined, which appear to contain some redundancies with the Jones test: (1) the observation period; (2) the operator's certification to perform the test; (3) the maintenance and calibration of the device; (4) the specifics of how the test was given in the case; and (5) the record of the test results. (People v Aliaj, 36 Misc 3d 682, 694-697.)

Perhaps most succinct is the test favored by the court in People v Brockington (51 Misc 3d 1211[A], 2016 NY Slip Op 50609[U] [Crim Ct, NY County 2016]). In this case, the court, relying on the legislative intent of Vehicle and Traffic Law § 1194 (4) (c), set forth three factors to consider in admitting the results of the PBT: "(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." (People v Brockington, 51 Misc 3d 1211[A], [*8]2016 NY Slip Op 50609[U], *1-2 [citations omitted].)

Finally, People v Santiago, a Supreme Court decision from Bronx County, relies on the factors set forth in another trial level case, People v Hargobind (34 Misc 3d 1237[A], 2012 NY Slip Op 50450[U] [Crim Ct, Kings County 2012]), and Aliaj. (People v Santiago, 47 Misc 3d 195 [Sup Ct, Bronx County 2014].) Similar to Brockington, the court in Santiago places emphasis on whether the PBT model in question appears on the Conforming Products List. (Id. at 198.) The court's inquiry does not stop there, however; it takes an evaluative approach that combines the factors in Hargobind with the analysis in Aliaj:

"[T]he prosecution is required to establish all of the following: (1) that the device has been tested, producing a reference standard, within a reasonable time period prior to the test on the defendant; (2) that the device was calibrated and working properly on the day in question; (3) that these preparatory procedures, and the actual test on the defendant, were conducted by properly trained persons; and (4) that the field test on the defendant was conducted{**78 Misc 3d at 781} in conditions that would lead to scientifically reliable results, including, but not limited to, that the defendant was observed for at least 15 to 20 minutes prior to the test to ensure that he had not ingested alcohol or had other contaminants in his mouth which would skew the test results. The waiting period has been described by at least one expert as the 'cornerstone' of chemical breath testing. Moreover, as has been observed, the conditions under which an officer performs a field test at the scene of a car stop are fraught with potential for error and must be carefully scrutinized. Distractions on a road or public street, the environment or weather, the degree of lighting and various other factors tend to complicate the administration of the test and undercut its reliability. (See People v Aliaj, 36 Misc 3d 682, 693 [2012].)" (People v Santiago, 47 Misc 3d 195, 199 [Sup Ct, Bronx County 2014].)

In Santiago, the court declined to admit the PBT results because the People could not meet their burden with respect to these foundational requirements, in particular the failure to conduct an observation period of the defendant before administering the test.

Some of the confusion in this area is caused by the structure of the Vehicle and Traffic Law.^[FN6] As Justice Conviser pointed out in Aliaj, the Vehicle and Traffic Law drafters clearly assumed a two-step process: a PBT on the street to establish probable cause for arrest, followed by a chemical test conducted elsewhere. (People v Aliaj, 36 Misc 3d 682, 692-693.) However, it's equally clear that Vehicle and Traffic Law § 1195 (1), which sets forth the admissibility requirements for a "chemical test," in no way precludes a PBT from qualifying as such a test, as long as it meets the requirements of Vehicle and Traffic Law § 1194. (Id.)

But what most of the trial judges whose decisions are described above have in common is that they were struggling with the admissibility of a test given pre-arrest and on the street, with little to no assurance of the test's reliability. There's a good reason for PBTs administered in this fashion to be presumptively inadmissible: it's hard to properly observe somebody for signs of burping on a dark New York City street corner at 2:00 a.m., much less administer a scientific test when{**78 Misc 3d at 782} confronting all manner of weather, bystanders, and other distractions. But, as the Aliaj court aptly pointed out, while PBT results should be presumptively inadmissible, that [*9]presumption can be overcome where the People can demonstrate the reliability of the results. (People v Aliaj, 36 Misc 3d 682, 693.) Particularly in the scenario where the PBT can meet the "hallmarks of a reliable chemical test," the results can be admissible. (Id. at 684.)^[FN7]

Synthesizing the various tests set forth by other trial courts, and reading those tests in harmony with the appellate decisions described above, this court finds that the presumption against the admissibility of PBT results can be overcome if the People can show: (1) the machine is on the Conforming Products List under 10 NYCRR 59.4; (2) the officer has proper training in administering the machine; (3) the specific instrument is properly calibrated and in good working order, and employs a mechanism such as a system purge that ensures the sample is not compromised; (4) a proper 20-minute observation period occurred prior to the test being administered and (5) the test was properly administered in an environment that did not compromise the result. If the administration of the test is recorded by BWC (body worn camera) or other device, that will also weigh in favor of admission.

This Case

Conforming Products List

The Dräger Alcotest 7510 appears on the Department of Health's Conforming Products List. (10 NYCRR 59.4.) This in and of itself satisfies the requirement that the machine be one that produces scientifically reliable results. (People v Brockington, 51 Misc 3d 1211[A], 2016 NY Slip Op 50609[U], *2; People v Lent, 29 Misc 3d 14, 16-17 [App Term, 2d Dept, 9th & 10th {**78 Misc 3d at 783}Jud Dists 2010]; People v Hargobind, 34 Misc 3d 1237[A], 2012 NY Slip Op 50450[U] [2012].) This acceptance by the Department of Health obviates the need for a Frye hearing to determine its scientific reliability. (People v Brockington, 51 Misc 3d 1211[A], 2016 NY Slip Op 50609[U], *2; People v Lent, 29 Misc 3d 14, 16-17 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]; People v Hargobind, 34 Misc 3d 1237[A], 2012 NY Slip Op 50450[U].)^[FN8]

The Administering Officer's Training

Detective Kessler successfully convinced the court that Officer Rodriguez was certified to administer the Dräger Alcotest 7510. Detective Kessler trained Officer Rodriguez as a member of the Highway Patrol, and Officer Rodriguez went through 75 hours of DWI and breath test training after which he became a member of the Highway Unit. (Hearing tr at 49, lines 12-18.) This included training on how to administer the Dräger Alcotest 7510. (Id.)

The Condition of the Machine

The People have established that the machine was in good [*10]working order at the time of the defendant's test. They admitted into evidence six records of calibration for the Dräger Alcotest 7510 used in this case. These calibrations took place every six months from April 4, 2021, through May 25, 2022, in accordance with NYPD guidelines and twice as often as required by New York State. (Hearing tr at 62, lines 4-8.) Each of these calibration reports demonstrated this specific Dräger Alcotest 7510 machine was operating within acceptable guidelines and in good working order. (Hearing tr at 69, lines 5-10.)

The calibration report from May 25, 2022, six months after the defendant's arrest, is particularly significant. Detective Kessler indicated that because this calibration report showed the machine was in good working order, it must have been operating properly in the six months prior. (Hearing tr at 92, lines 6-12.) In other words, the machine would not be able to rectify an issue on its own if at some point it went out of order between calibration reports. (Id.) Detective Kessler, in his expert opinion, unequivocally stated that based on his review of the calibration records for this specific Dräger Alcotest 7510 it was in good working order on the date the defendant gave a sample. (Hearing tr at 89, lines 19-23.){**78 Misc 3d at 784}

It also bears noting that while the Intoxilyzer 9000 uses different technology to ensure the reliability of its test results, that does not mean the software used by Dräger was any less reliable. While an Intoxilyzer 9000 has a function known as an air blank, which pushes residual air out of the sample chamber prior to a test, the Dräger uses fuel cell technology to achieve essentially the same result. (Hearing tr at 79, lines 15-23; at 80, lines 1-11.) Once the Dräger reads the ethanol in the breath sample, the machine clears the air to get ready for another sample. (Hearing tr at 87, lines 12-18.)

The Observation Period

The testimony at the hearing was uncontroverted that Officer Winters observed the defendant for 20 minutes prior to the test, during which time the defendant did not place anything in his mouth, eat, drink or burp. (Hearing tr at 15, lines 7-25; at 16, lines 1-7.) Furthermore, the observation period took place in a well-lit hospital, where the officer had a clear view of the defendant at all times. As Detective Kessler pointed out, this 20-minute observation period is actually five minutes longer than required by New York State regulations and is exactly the same length of time as the observation period done in an IDTU room. (Hearing tr at 71, lines 2-21.) That the BWC did not capture the 20-minute observation period is of no moment. Officer Winters convincingly testified to his firsthand account of observing the defendant for 20 minutes before he took the test.

The Administration of the Test

The People also established that the test was properly administered at Lincoln Hospital after the defendant's arrest. Detective Kessler as well as Officer Winters were both able to testify to the testing procedures employed at the hospital. Officer Winters could speak to what occurred at the hospital because he was present for it, and Detective Kessler was able to review the body worn camera of Officer Rodriguez administering the test.

Furthermore, the way the test was given in this case favors the admissibility of these results. The BWC showed this test was given in a "straightforward" manner. (People v Aliaj, 36 Misc 3d 682, 697.) The defendant received refusal warnings prior to giving his breath sample. (Hearing tr at 14, lines 17-25; at 14, lines 1-4.) He was provided a clean straw with which to blow into the machine. Upon calculating the defendant's BAC, the Dräger Alcotest 7510 immediately printed out a {**78 Misc 3d at 785}receipt that was signed by Officer Rodriguez and that contained the defendant's information, the name of Officer Rodriguez and the BAC result as well as the make and model of the machine used. (Hearing tr at 20, lines 2-6; at 21, lines 3-9.) Additionally, the entire testing procedure, with the exception of the 20-minute observation period, was [*11]captured on Officer Rodriguez's BWC and the test was administered within two hours of the defendant's arrest. ("Nevertheless, since the Dräger Alco test was administered to defendant within the relevant two hour time period [see Vehicle and Traffic Law § 1194 (2)], that test result was properly admitted as evidence of defendant's intoxication [see Vehicle and Traffic Law § 1195 (1)]." [People v Owen, 75 Misc 3d 127(A), 2022 NY Slip Op 50368(U), *2 (App Term, 2d Dept, 9th & 10th Jud Dists 2022).])

Finally, one of the main reasons why the PBT was not admitted into evidence in Aliaj was the court's concern about the integrity of the results when the test is given out in the field in an uncontrolled environment. ("The environment, whether the air, the possibilities for radio interference, the temperature or a location's physical layout cannot be precisely controlled. A defendant, all things being equal, is more easily monitored at a precinct" [People v Aliaj, 36 Misc 3d 682, 693; see also People v Hargobind, 34 Misc 3d 1237(A), 2012 NY Slip Op 50450(U), *4].) These very valid concerns did not exist in this case. This test was administered in the confines of a hospital where it was orderly, quiet and clean, unlike a roadside encounter.^[FN9]

When the People can demonstrate "that defendants are properly observed prior to being tested and that tests are given by trained operators, using well maintained and serviced machines with thorough records," as they did here, the court can be satisfied the PBT results are reliable. (People v Aliaj, 36 Misc 3d 682, 698.) The People will not always be able to do this: the streets of New York City are far from sterile laboratories. In this case, though, the use of the Dräger Alcotest 7510 was akin to that of the Intoxilyzer 9000, but for the fact that it was physically brought to the hospital rather than a stationary{**78 Misc 3d at 786} device at the precinct. Based on the foregoing and specific facts of this case—where the test was administered by a trained operator, in a controlled environment, with a well-functioning machine—the court finds the Dräger Alcotest 7510 result to be admissible.