People v. PalenciaPeople v. Palencia
Lead Opinion
Aрpeal by the defendant from a judgment of the County Court, Nassau County (Spergel, J.), rendered September 13, 2013, convicting him of operating a motor vehicle while under the influence of alcohol in violation of Vehicle and Traffic Law § 1192 (3), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing before the Supreme Court, Nassau County (Ayres, J.), of that branch of the defendant’s motion which was to suppress evidence of his refusal to submit to a chemical breath test, and the granting of the People’s separate motion to admit the results of a prior portable breath test into evidence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.
In the early morning hours of March 25, 2012, the defendant was involved in a motor vehicle accident in which he struck the rear end of another vehicle on a public highway. A New York State Trooper who responded to the scene observed that the defendant exhibited signs of intoxicatiоn, and administered several field sobriety tests, including a horizontal-gaze nystagmus test, a walk-and-turn test, and a one-legged foot-elevation test. Based on the defendant’s performance, the trooper concluded that he failed all three tests. Thereafter, the trooper administered a portable breath test (hereinafter PBT) to the defеndant. The trooper verbally instructed the defendant how to perform the PBT, and also physically demonstrated how to take the test. The defendant put his lips on the mouthpiece and exhaled until he was told to stop. The PBT showed a positive blood alcohol concentration, after which the trooper informed the defendant of that positive result. The trooper did not write down the result of the PBT, and he testified at the suppression hearing that it was not his general
Thereafter, the trooper transported the defendant to the nearest New York State Police barracks, and prepared a device known as a Draeger instrument tо administer the chemical breath test. The trooper instructed the defendant to blow into the mouthpiece until he was told to stop. According to the trooper, the defendant exhaled with a short breath, and stopped before being told to stop. The trooper removed the mouthpiece, replaced it with a new one, and had the defendant try again. Once again, the defendant did not provide a full breath sample. Thereafter, the trooper allowed the defendant three more opportunities to provide an adequate breath sample. However, each time the defendant only exhaled with a short breath. After the fifth attempt, the defendant told the trooрer that he could not blow any longer, and the trooper deemed the defendant’s behavior to be a refusal to submit to the test.
Prior to the start of trial, the People moved in limine to allow testimony about the administration and results of the PBT. The People argued that such testimony went to the defendant’s state of mind and consciousness of guilt when he was administered the Draeger chemical breath test at the State Police barracks, inasmuch as he was able to provide a proper breath sample for the PBT. The defense objected, and argued that the evidence of the results of the PBT was inadmissible because the test was not reliable and the results were prejudicial. Subsequently, the Suрreme Court issued a written decision explaining that it would allow those results into evidence if the People could show the reliability of the PBT device by confirming that it was on the conforming list approved by the Commissioner of the New York State Department of Health (hereinafter the Commissioner), that the test was properly administered, that the test was administered by a properly qualified administrator, and that the defendant had knowledge that the test results showed a presence of alcohol.
During the trial, which was conducted by the County Court, that court took judicial notice of the fact that the PBT device was on the Conforming Products List of Evidential Breath Alcohol Measurement Devices (hereinaftеr the conforming list)
On appeal, the defendant contends that he was deprived of his right to a fair trial based on the County Court’s admission of the PBT results into evidence. We agreе. Under the circumstances of this case, the probative value of the PBT evidence was outweighed by its prejudicial effect and, accordingly, should have been excluded (see People v Caban,
Generally, the result of a PBT “is not admissible to establish intoxication, as its reliability for this purpose is not generally accepted in the scientific community” (People v Kulk,
Moreover, the risk that the jurors would consider the PBT rеsults as evidence of intoxication was further magnified by the fact that the jurors were not given a limiting instruction at the time the PBT evidence was presented but, instead, only at the end of the trial. While limiting instructions can, in certain instances, function to alleviate the potentially prejudicial impact of evidence, under the particular circumstancеs of this case, the prejudicial impact of the PBT evidence was substantial and, contrary to the conclusion reached by our dissenting colleagues, this prejudice was not alleviated by the contents or timing of the limiting instruction given by the County Court (see People v Clarke,
The exclusion of the PBT evidence was further warranted since the limited testimony of the trooper did not estаblish 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,
While the People argue that the reliability of the PBT is irrelevant because the evidence was not introduced for the purpose of proving the defendant’s intoxication, one cannot ignore that when a lay juror is presented with evidence of this nature, i.e., an instrument able to detect the presence of alcohol, there is a strong likelihood that its result will be given
Moreover, we find that the evidence of the administration and results of the PBT test was unnecessary given the totality of the circumstances. The trooper testified that the defendant failed all other field sobriety tests administered to him, and that, when he was brought to the State Police barracks, he made five unsuccessful attempts to take the chemicаl test, each time failing to follow the trooper’s instructions. This provided the People with sufficient evidence to support their argument that the defendant evinced a consciousness of guilt without the need of introducing the PBT evidence.
The introduction of the PBT evidence was so prejudicial that it deprived the defendant of his constitutionally guaranteed right to a fair trial (see People v Henriquez,
Accordingly, a new trial must be ordered.
We need not address the defendant’s remaining contentions, which have been rendered academic by our determination. Hinds-Radix, Maltese and LaSalle, JJ., concur.
Dissenting Opinion
dissents, and votes to affirm the judgment, with the following memorandum, in which Miller, J., concurs: The majority concludes that the defendant’s conviction must be reversed becаuse the admission of evidence regarding the results of a portable breath test (hereinafter PBT), not for the purpose of proving intoxication, but for the limited purpose of demonstrating the defendant’s state of mind when subsequently administered a chemical test, deprived the defendant of a fair trial. In my view, the PBT evidence was probative of the dеfendant’s state of mind at the time he was administered the chemical test and, in light of the explicit limiting instruction provided by the trial court regarding the use of the evidence, its admission was not more prejudicial than probative. Since the defendant’s other contentions on appeal lack merit, I therefore dissent, and would affirm the defendant’s judgment of сonviction.
On March 25, 2012, a New York State Trooper, after respond
At trial, the People sought to introduce evidence that the defendant was administered a PBT, and that he was advised that the test showed that he was intoxicated. The People sought to introduce this evidence, not to prove intoxicatiоn, but to demonstrate the defendant’s state of mind when he was subsequently administered the chemical breath test. Under the particular circumstances of this case, evidence of the PBT was properly admitted for that limited purpose (see People v MacDonald,
Generally, “all relevant evidence is admissible unless its admission violates some exclusionary rule” (People v Scarola,
Here, the evidence that a PBT was administered to the defendant and that he was told that it rendered a positive result for intoxication tended to show that his failure to exhale a sufficient volume of breath for a sufficient period of time into the chemical breath test device was purposeful and demonstrative of his consciousness of guilt. Thus, under the general rule, the PBT evidence was admissible for that limited purpose unless its probative value was “substantially outweighed” by its potential prejudicial effect (People v Mateo,
The defendant could only be unduly prejudiced by the admission of the PBT evidence if the jury considered the evidence as proof of his intoxication. Thus, in my view, the trial court struck
Reflective of that fact, courts have frequently permitted, where relevant, the introduction of evidence as potentially prejudicial as a defendant’s alleged commission of uncharged crimes (see e.g. People v Morris,
Contrary to the majority’s concern, the People’s failure to establish the reliability of the PBT device is not dispositive. As the trial court instructed the jury, the PBT evidence was admitted for the purpose of proving the defendant’s state of mind when the chemical breath test was administered. Thus, the operative fact is that the defendant was told that the results of the PBT were positive for intoxication. Whether that result was correct or reliable is irrelevant.
Accordingly, in light of the trial court’s limiting instructions, the PBT evidence was properly admitted because its probative value outweighed its prejudicial impact (see People v MacDonald,
Additionally, the Supreme Court, after a pretrial hearing, properly declined to suppress evidence of the defendant’s refusal to submit to the chemical breath test. There was sufficient evidence before that court to support the сonclusion that the defendant was given clear and unequivocal warnings of the effect of his refusal, and that he persisted in his refusal to submit to the test by refusing to exhale a sufficient volume of breath into the machine for a sufficient period of time (see Vehicle and Traffic Law § 1194 [2] [fj; People v Barger,
Contrary to the defendant’s further contention, the trial evidence demonstrated that the failure to obtain a chemical breath-test result at the police barracks was the result of the defendant’s conduct, as opposed to a failure of the device (see Matter of Johnson v Adduci,
I would therefore affirm the judgment.