Many courts, as well as Defendant here, rely upon People v. Thomas, for the proposition that breath tests are inadmissible to prove intoxication. In Thomas, the court found the results inadmissable because, having been offered to prove intoxication, the People had not laid a proper foundation demonstrating the reliability of the test. Thomas, supra, at 671. ("The record is completely barren of scientific evidence which would establish the reliability of the test."). Thus the court did not categorically rule out the admission of field breath tests.

Since the Thomas decision in 1986, field breath test devices have been deemed scientifically reliable by the New York State Department of Health. Evidence to establish the reliability of breath analysis instruments may be demonstrated by its inclusion on the Conforming Products List of Evidential Breath Alcohol Measurement Devices, and resulting approval by the Commissioner of Health for use in New York, obviating the need for expert testimony. See People v. Lent, 29 Misc 3d 14, 16—17, 908 N.Y.S.2d 804 (App. Term, 2d Dept. 2010)("The scientific accuracy of breath analysis instruments approved by the New York State Department of Health is no longer open to question."); People v. Hampe, 181 AD2d 238, 240, 585 N.Y.S.2d 861; see also People v. Boscic, 15 NY3d 494, 499, 912 N.Y.S.2d 556, 938 N.E.2d 989 (2010)(noting that the Department of Health "has been charged by the Legislature to evaluate and approve specific models of breath-alcohol testing machines"); 10 NYCRR 59.4(b).

The Intoximeter in our case is now on the Conforming Products List of Evidential Breath Alcohol Measurement Devices; thus expert testimony as to its general reliability is not needed. The Intoximeter Alco-Sensor FST has been on the list approved by New York's Commissioner of Health for use in New York since at least May 2007. See 10 NYCRR 59.4(b) (as amended May 2, 2007). The device has been on the federal Conforming Products List of Evidential Breath Alcohol Measurement Devices since July 14, 2004. See 69 Fed. Reg. 42237-01, 2004 WL 1561138 (F.R.) (July 14, 2007).

The New York Vehicle and Traffic Law does not specifically prohibit the admission of field breath tests nor does it mandate their admission. Field breath tests are permitted pursuant to VTL § 1194(1)(b), stating that "[i]f such test indicates that such operator has consumed alcohol, the police officer may request such operator to submit to a chemical test." The Commentaries for [*3]VTL § 1194(1)(b) note that:

This breath test, sometimes called a screening test, involves a portable machine which is used by the police on the road to determine whether there is alcohol present in the motorist being tested. This screening or breath test machine is used as a pass/fail test and is basically reliable for the determination of some presence of alcohol in a person's blood but not the actual percentage or concentration. (Emphasis added.)

The Practice Commentaries to VTL § 1194 regarding the admissibility of results of screening tests in evidence notes that "[w]hile the cases differ, it would appear that the majority and better view is that the breath or alco-sensor test results should not be admissible in evidence." See Carrieri, Practice Commentaries, McKinney's Cons Laws of NY, Vehicle and Traffic Law § 1194 (2011 ed), citing People v. Thomas, 121 AD2d 73, 509 N.Y.S.2d 668 (4th Dept. 1986), affirmed 70 NY2d 823, 523 N.Y.S.2d 437, 517 N.E.2d 1323.

The Commentaries continue, observing that "although an alco-sensor test is not admissible as evidence of intoxication, breath screening devices have won acceptance as being sufficiently reliable to establish probable cause for an arrest and may be used by the police to establish a basis to request a chemical test." Carrieri, Practice Commentaries, supra.

The People rely on People v. Jones, 33 Misc 3d 181, 927 N.Y.S.2d 586 (Crim. Ct., NY Co. 2011), which held that an otherwise reliable breath test is not rendered inadmissible because it is capable of being moved. In Jones, the court concluded that a portable breath test ("PBT") utilizing the Intoximeter Alco-sensor FST, the same device utilized in our case, is reliable and, having analyzed the breath and chemical alcohol test regulations, that the PBT at issue could also be used as a chemical test. As in Jones, this Court holds that the portability of the Intoximeter device does not automatically render its results inadmissible.

This Court, as a trial court, does not lightly disregard appellate precedent, such as Thomas, supra, as cited above. However, much of that precedent pre-dates the inclusion of the Intoximeter on the approved list of the Commissioner of Health. Moreover, none of the cases decided subsequently that deny admission of Intoximeter results appear to consider the Commissioner's inclusion of the Intoximeter on the approved list, but they rather rely on earlier cases that predate the device's inclusion as approved by the Commissioner.^[FN1] Therefore, in being persuaded by the rationale of Jones, this Court does not purport to overrule any of the Appellate precedent cited by the People, but rather to apply the law to changed circumstances — to wit, the Commissioner's subsequent inclusion of the Intoximeter as an approved device.

In Jones, the court ruled orally after argument on a motion in limine, but did not issue its written opinion until conclusion of a jury trial. Thus, prior to issuing its written opinion, the Jones court had the benefit of the People's evidentiary foundation, upon which it relied for its opinion. Here, we do not have that benefit. Instead, the People have affirmed they have evidence that will satisfy each of the foundational elements at trial. In these circumstances, the People's [*4]affirmation will not suffice to satisfy the foundational requirements; however, the People will have an opportunity to establish an adequate evidentiary foundation at trial for the admission into evidence of the results of the test.

Thus to establish the reliability of the results of the particular Intoximeter administered to Defendant, the People will have to show at least the following: that the device had been tested, producing a reference standard, within a reasonable period prior to Defendant's test; that the device had been properly calibrated; that the device was properly functioning on the day the test was administered; that the test was administered properly, including that the device was purged prior to the test, by a properly qualified administrator; and that Defendant was observed for at least 15 minutes prior to the test to ensure that Defendant had not "ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked, or have anything in his/her mouth." See Boscic, supra; People v. Mertz, 68 NY2d 136, 148, 506 N.Y.S.2d 290, 497 N.E.2d 657 (1986), Jones, supra; 10 NYCRR 59.4 and 59.5.^[FN2] And, of course, any foundational evidence proffered by the People will be subject to voir dire and cross-examination by Defendant.^[FN3]

Based on the People's motion, there appear to be several obstacles complicating the establishment of a foundation. Difficulties inherent to establishing a foundation for a field test exist that do not exist for tests conducted at the Intoxicated Driver Testing Unit because of the lack of a controlled facility, including, but not limited to: observation of Defendant for 15 minutes,^[FN4] evidence of pre- and post-sample purge of the device, and an opportunity to refuse the breath test. Additionally, while there is no strict six-month rule regarding device calibration, see Boscic, supra, the post-test calibration in this case occurred more than a year after the Defendant's test was administered, and more than one year elapsed between the pre- and post-[*5]breath test calibrations.^[FN5] The test given at the time and scene of arrest, while presumably reliable as a breath test, does not necessarily follow the procedures and practices articulated in VTL § 1194(2), and the Court expresses no opinion at this time as to whether the People can lay a sufficient foundation to allow the Intoximeter results into evidence.

Indeed, as noted in Reed and Santana, the VTL statutory scheme supports the notion that the field breath test's purpose is "intended to differentiate between preliminary tests done at the scene of the crime and those conducted back at the station house. The obvious rationale for this distinction is that the conditions surrounding a field test do not give the same assurance of reliability and accuracy as those in a controlled environment." Reed, supra, *7. Prior to the November 2, 2011 revision, the Department of Health rules had "recognize[ed] the distinction between preliminary screening tests and chemical tests." Prior to revision, 10 NYCRR 59.5(a) provided that a breath sample shall be collected within two hours of the time of arrest "or within two hours of a positive breath alcohol screening test."^[FN6]

Moreover, as Santana articulates, the procedures associated with the application of, and right to refuse, the chemical test in VTL § 1194(2) offer a specific set of procedures designed to protect the defendant and ensure reliability of test results. The chemical tests that are typically introduced as evidence are conducted at a precinct rather than at the place of arrest, the warnings as to the consequences of refusal, the calibration of the chemical breathalyser machine, and the actual test (or refusal) are videotaped. Santana, supra, at *2; VTL § 1194(2). In our case, by contrast, the People have not set forth any indication that the test at issue was videotaped. While lack of video would not necessarily prevent the test results from coming into evidence, it would appear to affect at least the weight afforded any such evidence by the trier of fact, and the lack of a video recording could be considered in the Court's determination as to whether a proper foundation has been laid, for example, if there were to be vague, imprecise or conflicting testimony as to the circumstances under which the test had been given.

Jones also discussed the VTL statutory scheme, specifically VTL §§ 1194 and 1195, concluding that PBTs are not "rendered inadmissible by virtue of VTL § 1194." Jones, supra, *3. As noted in Jones, VTL § 1195(1) states that "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" VTL § 1194, which lays out the circumstances under which blood alcohol testing is authorized. See Santana, supra; Jones, supra. As discussed above, those circumstances and the distinction between field testing (VTL § 1194(1)(b)) and chemical tests administered at a precinct (VTL §1194 (2)), articulate procedures that significantly impact the rights of defendants regarding refusal, and the operation and maintenance of chemical breathalyser tests.^[FN7]

Accordingly, the People's motion is granted only to the extent that they may attempt to lay a proper foundation for admission of the portable Intoximeter field test, with the ultimate [*6]decision on admissibility reserved.

The incident, here, is alleged to have occurred on March 28, 2009, and Defendant was arraigned and charged with VTL §§ 1192(1), 1192(3), 1180(A), and 1212, two of which are infractions, on the same day. Thus, the action was commenced within the one-year statute of limitations. Furthermore, the People are permitted to superceded a misdemeanor complaint.

New York CPL § 170.65(2) states that:

An information which replaces a misdemeanor complaint need not charge the same offense or offenses, but at least one count thereof must charge the commission by the defendant of an offense based upon conduct which was the subject of the misdemeanor complaint. In addition, the information may, subject to the rules of joinder, charge any other offense which the factual allegations thereof or of any supporting depositions accompanying it are legally sufficient to support, even though such offense is not based upon conduct which was the subject of the misdemeanor complaint.

Additionally, prior to entry of a guilty plea or commencement of trial the People can add any charge based upon facts alleged in a new information, irrespective of whether the new charge is based upon facts alleged in the original filing. See CPL § 100.50. ("If at any time before entry of a plea of guilty to or commencement of a trial of an information . . . is filed with the same local criminal court charging the defendant with an offense charged in the first instrument, the first such instrument is, with respect to such offense, superseded by the second and . . . the count of the first instrument charging such offense must be dismissed by the court.").

The Defendant has not pled guilty nor has a trial on these charges commenced, and there are no apparent defects in the Superceding Information filed by the People. Therefore, the People have timely filed all of the charges against Defendant, and the Defendant's motion is dismissed.