The People v. Hao Lin, 28 N.Y.3d 701

Background

Defendant arrested for DWI; taken to police station for Intoxilyzer 5000 breath test administered by Officer Harriman with Officer Mercado present and videotaping.
Harriman operated the machine and completed a 13-step checklist; Mercado observed the procedure, operated the video, and was trained on the device.
First two breath attempts produced an error tone; third attempt yielded a printed BAC result of .25. Mercado testified the machine cannot be altered after a person blows.
Harriman retired and moved out of state before trial; Mercado testified at trial about the test, results, and defendant’s intoxication; the 13-step checklist was not admitted.
Appellate Term reversed, finding a Confrontation Clause violation because Mercado did not personally verify the simulator solution temperature display (an “essential” checklist step) and the record did not show the machine would fail if temperature was wrong.
Court of Appeals reversed the Appellate Term: Mercado personally observed the testing, testified from his own observations, video corroborated no error tone when the result printed, and no testimonial statements from the non-testifying officer were used against defendant.

Issues

Issue	People’s Argument	Lin’s Argument	Held
Whether Confrontation Clause barred Mercado’s testimony about breath test he did not personally administer	Mercado observed the entire procedure, was trained, and gave firsthand observations of the test and machine output	Mercado did not personally perform key checklist steps (e.g., simulator temperature) so testimonial statements of non-testifying analyst were used against defendant	No violation — Mercado testified to his own observations, not as surrogate for Harriman; admissible
Whether failure to admit Harriman’s checklist or Harriman’s testimony deprived Lin of confrontation	Not necessary where a live witness with personal knowledge (Mercado) testified about the procedure and result	Absence of the primary operator’s testimony (Harriman) left gaps about compliance with checklist, potentially affecting foundation	Gaps go to weight/foundation, not Confrontation Clause; jury could find foundation adequate based on Mercado and video
Whether absence of verification of simulator solution temperature required the machine to fail or render result unreliable	Machine emits error tone and will not give a result when problems occur; video and Mercado’s testimony showed no error during verification	Because Mercado did not personally view the temperature display, there was insufficient assurance the machine was within range	Record supported that machine functioned and printed result; jury could infer proper temperature; not a confrontation problem
Remedy for alleged Confrontation Clause violation found by Appellate Term	Seek reversal of Appellate Term and reinstatement of convictions	Maintain Appellate Term reversal and remand for new trial	Court of Appeals reversed Appellate Term and remitted for unresolved issues to be considered by that court

Key Cases Cited

Bullcoming v. New Mexico, 564 U.S. 647 (2011) (surrogate testimony from an analyst who neither performed nor observed the particular test violates Confrontation Clause)
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (testimonial forensic reports require the analyst to be subject to confrontation)
Williams v. Illinois, 132 S. Ct. 2221 (2012) (distinguishes testimonial statements and clarifies confrontation analysis for forensic evidence)
People v. John, 27 N.Y.3d 294 (2016) (Confrontation Clause violation where no testifying analyst who performed, witnessed, or supervised the critical testing)
People v. Brown, 13 N.Y.3d 332 (2009) (no violation where testifying witness supervised and independently interpreted the testing data)
People v. Pealer, 20 N.Y.3d 447 (2013) (discusses Confrontation Clause application to forensic testimony)
People v. Boscic, 15 N.Y.3d 494 (2010) (procedural irregularities in testing affect weight, not admissibility, when confrontation concerns are satisfied)