118 Misc. 2d 687 | New York County Courts | 1983
OPINION OF THE COURT
The issue presented by the motion of the defendant is whether the results of a breath test performed on an Intoximeter 3000, a device employing infrared and electri
A suppression hearing was held at which this court heard testimony from one of the developers of the instrument, from an official of the Bureau of Municipal Police in the New York State Division of Criminal Justice Services, from a project director for the breath-alcohol program of the United States Department of Transportation involved in the evaluation of breath-alcohol test devices for the National Highway Traffic Safety Administration and, for the defendant, from a professor of chemistry at the State University of New York at Albany.
This is a case of first impression and may be of broad impact throughout the State of New York; thus a full exposition of the issues and their resolution is required.
FINDINGS OF FACT
The Intoximeter 3000 is a breath-testing device which utilizes infrared energy and electrical current to detect the presence of ethyl alcohol (ethanol) in the breath of a driver. The device, as are all breath-testing devices, is based upon Henry’s law
The cell through which the infrared beams pass has two chambers. One, the reference cell, contains only room air. The other, the sample cell, contains during a test 900 cubic centimeters of the subject’s alveolar air. The device gives a
In order to enable the Intoximeter 3000 to give a specific reading for ethyl alcohol, another device is necessary. Thus the Intoximeter 3000, in addition to its infrared analysis of breath based on the Beer-Lambert law of absorption, also contains a semiconductor (a Taguci sensor) by which it is able to distinguish ethyl alcohol from other substances which absorb infrared radiation in the area of 3.39 microns.
The Taguci sensor is a semiconductor device the conductivity of which is influenced by the ambient air in the sample chamber. The conductivity of the semiconductor varies when there is present in that ambient air an oxidizable vapor such as ethyl alcohol or other hydrocarbon. Programmed into the memory of the computer that is mated to the Intoximeter 3000 are the specific conductivity readings (in amperes) of the sensor when ethyl alcohol is present in the sample chamber at varying levels which correspond to the various blood-alcohol levels. These conductivity readings are predetermined empirically in the
Operation of the Intoximeter 3000 is relatively simple and requires minimal operator intervention compared with more common breath-testing devices.
Each test commences with a 20-minute waiting period during which the subject is observed to insure that he does not ingest any alcohol, regurgitate or vomit. The operator presses a “start” button and then follows the machine’s commands to enter his name and identification number and the subject’s name. Following the last entry, the machine automatically blanks and purges to remove any residual alcohol fumes and to take a baseline reading, which ought to read “.00.” The machine then commands the subject to blow into the breath tube until the machine
The machine automatically safeguards against any contaminants in the room air and contains fail-safe devices to abort if there are room temperature or electrical or voltage problems, which rarely occur.
CONCLUSIONS OF LAW
Counsel for the defendant makes two threshold arguments. First, that sections 1193-a and 1194 of the Vehicle and Traffic Law permit only a “chemical test” of the breath, blood, urine, or saliva of a motor vehicle operator for the purpose of determining the alcoholic or drug content of his blood.
The defendant’s position is unrealistic and unfounded. There is no precedent in the State of New York on this issue, but a similar argument was made and rejected in courts of other States with regard to the Omicron Intoxilyzer (another breath-testing device, utilizing infrared theory). In Ohio, a court held that even though the infrared test did not involve an actual chemical reaction, the definition of chemical analysis was broad enough to embrace the infrared process (City of Dayton v Schenck, 63 Ohio Misc 14). Similarly, in Delaware, the court held that the Intoxilyzer did perform a chemical analysis as required by State law regardless of the fact that the procedure was purely mechanical. The court concluded the term “chemical test” meant only an “analysis” of the substance being tested — that is, an examination of a substance to determine its component parts and proportions thereof, regardless of the method of testing (State v Moore, 307 A2d 548 [Del]). This court likewise concluded that the term “chemical test” as used in sections 1193-a and 1194 of the Vehicle and Traffic Law was intended to mean an analysis of the chemistry of the substances therein referred to — breath, blood, urine or saliva — to determine the subject’s blood-alcohol content, and was not intended to refer to the method of testing. Thus an analysis of breath as performed by the Intoximeter 3000, which utilizes established principles and laws of physics, is a chemical test within the meaning of that term in sections 1193-a and 1194 of the Vehicle and Traffic Law. The position advanced by defendant seeks to restrict the meaning of “chemical test” to a process more appropriately called a chemical reaction. There is no authority in the law to require defendant’s interpretation. Furthermore, to adopt the defendant’s position would be to bind inflexibly the administration of justice to the level of technology extant at the time of the enactment of the statute while technological advances thereafter would be unavailable to law enforcement officials if they did not fall
The defendant’s second threshold argument is that the results of the Intoximeter test are inadmissible because the instrument has not been certified or tested by the New York State Department of Health nor has it been listed by the director of the State Police laboratory as a device which meets the criteria of the Department of Health, both of which preconditions, the defendant argues, are required by subdivision 9 of section 194 of the Vehicle and Traffic Law.
This court finds nothing in subdivision 9 of section 1194 mandating the Department of Health to establish criteria for breath-alcohol testing devices, let alone conditioning the evidentiary admissibility of the test results of such devices upon their conformance with such criteria. Subdivision 9 of section 1194 of the Vehicle and Traffic Law is concededly inartfully drawn, but in this court’s view its obvious intent and purport were to establish a procedure for issuing permits to qualified test operators so as to establish a presumption that the test was properly given and thus ease at trial the People’s burden with respect to establishing a foundation at trial for the admissibility of breath-alcohol test results. Interestingly the subdivision in question specifically provides that it does not prohibit the introduction as evidence of an analysis made by an individual not possessing a permit issued by the Department of Health.
The fact that the Department of Health saw fit to promulgate “regulations”, contained in 10 NYCRR Part 59, purporting to establish standards respecting the techniques and methods for breath-alcohol testing, is not governing. There is no express provision in the Vehicle and Traffic Law requiring compliance with the Health Department’s regulations as a condition for the admission into evidence of breath test results (People v Monahan, 25 NY2d 378). Rather, the validity of the test and the admission of the test results into evidence should be, and is, determined by their accuracy and reliability as determined by resort to generally accepted scientific standards. (See People v Meikrantz, 77 Misc 2d 892.) Similarly, the absence
Essentially both threshold arguments by the defendant beg the basic question: Can the Intoximeter 3000 reliably and accurately measure the amount of alcohol in a driver’s blood through an analysis of the subject’s breath?
The law with respect to the admissibility of evidence derived from a scientific test or process has its touchstone in Frye v United States (293 F 1013, 1014): Is the process “sufficiently established to have gained general acceptance in the particular field in which it belongs”?
New York courts have consistently employed the Frye criterion to determine the admissibility of scientifically derived evidence. It has served as the basis for excluding the results of lie detection tests conducted with the pathometer (People v Forte, 279 NY 204), the polygraph (People v Leone, 25 NY2d 511), and voice stress analysis (People v Tarsia, 50 NY2d 1). Conversely, Frye has been used to sanction the introduction of breathalyzer test results (People v Donaldson, 36 AD2d 37) and automobile speed evidence obtained with radar (People v Magri, 3 NY2d 562).
Thus, the inquiry at hand becomes whether the process of analyzing breath by means of infrared energy and electrical current is sufficiently established so as to have gained general acceptance in its field. It is the conclusion of this court that it has.
The identification of unknown compounds by means of principles of infrared molecular absorption is well recog
However, this can not end the discussion. If infrared analysis were the only process incorporated in the Intoximeter 3000, the results of its tests would be inadmissible because the test would lack specificity in light of the numerous substances, in addition to ethyl alcohol, which absorb infrared energy at the wavelength of 3.39 microns.
This lack of specificity in the report of the Intoximeter’s infrared sensor is fully compensated for by its semiconductor sensor. The utility of semiconductors in electrical devices cannot be gainsaid. They are generally recognized in the scientific community and the electronics industry as being capable of conducting varying rates of electrical current depending upon the environment in which they are located. Thus, as has been empirically demonstrated, a Taguci-type semiconductor is able to distinguish between the various substances which absorb infrared energy with a wavelength of 3.39 microns by conducting electrical currents of varying strengths depending upon what substances are present in its environment. For each such substance, including ethyl alcohol, the semiconductor transmits an electrical current of a specific strength which can be empirically predetermined.
Dr. Arthur Flores, a chemist and project director for the breath-alcohol program of the United States Department of Transportation, charged with the duty of evaluating breath-alcohol testing devices for the National Highway Traffic Safety Administration, testified that extensive tests were performed on the Intoximeter 3000 in 1980 and 1981 to determine the accuracy and reliability of the machine as evidential breath testers in determining the blood-alcohol content of a suspected drunk driver. The machine passed all Federal requirements and that fact was published in the Federal Register. This means that the National Highway Traffic Safety Administration will provide Federal funds under section 402 of the Highway Safety Act of 1966 (US Code, tit 23) to assist the States in purchasing the Intoximeter 3000.
The Intoximeter 3000 is used not only in the State of New York, but in the States of Idaho, Wyoming, Wisconsin, and Alaska, and countrywide in England.
For all of the reasons stated above it is the ultimate conclusion of this court that processes used by and incorporated in the Intoximeter 3000 are generally accepted in the
The findings of fact and conclusions of law heréin are made upon clear and convincing evidence.
. Section 1192 of the Vehicle and Traffic Law defines driving while intoxicated in terms of a percentage by weight of alcohol in the blood: “2. No person shall operate a motor vehicle while he has .10 of one per centum or more by weight of alcohol in his blood as shown by chemical analysis of his blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this chapter.” The validity of breath analysis to determine blood-alcohol content is based on the scientific principle known as Henry’s law which states that at any given temperature, the ratio between the concentration of alcohol in the blood and that in the alveolar air in the lungs is constant. The ratio has been found empirically to be 2,100:1 — i.e., 2,100 parts of deep lung air contain the same amount of alcohol as one part of blood. This ratio was adopted by the National Highway Safety Council’s Committee on Tests for Intoxication in 1952 and has been questioned and reaffirmed since then. In 1972, for example, an ad hoc committee on blood-breath alcohol relationship sponsored by Indiana University indorsed the continued use of the 2,100:1 ratio. (See 4 Gray, Attorneys’ Textbook of Medicine, par 133.73 [1].)
. The principle underlying infrared analysis of substances derives from the Beer-Lambert law of absorption. This law is the theoretical basis for the operation of devices such as the spectrophotometer as well as the Intoximeter 3000. According to this law, molecules absorb electromagnetic radiation. However, this molecular absorption is
It might be said that every chemical compound has “fingerprints” which are unique to it and by which the compound may be identified through infrared spectroscopy. While each chemical compound has its own spectrograph showing all the wavelengths at which it absorbs radiation, more than one compound may absorb energy at any one particular wavelength. Thus, while ethyl alcohol has a major absorption band at 3.39 microns, other compounds such as methyl alcohol, acetic acid, and ketone, including acetone, absorb at that wavelength as well. Thus, the fact that an unknown compound absorbs radiation in the vicinity of 3.39 microns merely narrows down the identity of such compound; in order to specifically identify the compound as ethyl alcohol, an additional process for factoring out other substances which absorb energy at a wavelength of 3.39 microns is necessary. The infrared spectrophotometer can accomplish the entire task by itself by reason of its ability to reverse the entire absorption pattern of a substance through a spectrum ranging from 1 to 100 microns, not just that at a wavelength of 3.39 microns; but it is a much more costly machine than the Intoximeter 3000 and is primarily a sophisticated laboratory instrument not geared to the operational ease required in intoxication testing by law enforcement personnel. However, the same result of factoring out substances other than ethyl alcohol that absorb energy at a wavelength of 3.39 microns is accomplished by the Intoximeter 3000 by the use of a semiconductor device.
. By “interfering substance” is meant any substance that absorbs radiation at 3.39 microns, among which are ethyl alcohol and acetone.
. All known elements generally fall into one of two categories, insulator or conductor, depending upon their electrical conductivity. Conductors (also known as metals) will
. The Intoximeter 3000 reports all nonethyl alcohol interfering substances found by the semiconductor as “acetone”, even though there may theoretically be some other
However, the semiconductor sensor is still always present to take care of the aberrational case and assure that the final reading of the Intoximeter 3000 is purely ethyl alcohol.
The actual identity of the interfering substance reported by the semiconductor, which realistically will always be acetone, is actually irrelevant because we are only interested in the quantity of the interferent and not its identity.
The above conclusions are supported empirically by numerous laboratory and field tests, not only by the manufacturer but by the National Highway Traffic Safety Administration.
. 10 NYCRR 59.4 lists four criteria for breath-alcohol testing devices. Interestingly the Intoximeter 3000 does, in fact, meet all of these criteria. The device does, in fact, collect and analyze a fixed volume of alveolar breath; it also is capable of analyzing and, in fact, does analyze reference samples of alcohol, and its analysis thereof has been shown to be within .01% of the certified alcohol content of the reference solution. As to the final criterion (that the procedure’s specificity be adequate and appropriate for the analysis of breath specimens for the determination of alcoholic concentration in traffic law enforcement), that is the very question addressed in the hearings on this motion and in this opinion and which question the court herein answers in the affirmative.
. The efficacy of the semiconductor’s ethyl alcohol/acetone discrimination has been demonstrated in the laboratory. Arthur Flores, project director for the National High
