122 Misc. 2d 637 | New York County Courts | 1984
OPINION OF THE COURT
In this pretrial motion for suppression of a breathalyzer test, defendant has requested a hearing to provide him with an opportunity to present expert testimony concerning the scientific feasibility of preserving defendant’s breath sample and the scientific necessity of conducting a second analysis of defendant’s breath to establish the validity of breathalyzer test results. In support of his application, defendant presents the testimony of a forensic chemist, who states that breath samples can and should be preserved for retesting by the defendant and the police as a matter of sound scientific procedure.
The court denies defendant’s application for a hearing. As to the scientific feasibility of preserving the breath sample, the court notes that defendant’s proffer of evidence on the issue of preservability of the sample goes to the materiality of a breath sample and rests on the premise that, if preservable and hence material, the sample is potentially exculpatory evidence which must be preserved for discovery by the defendant under the due process rationale of Brady v Maryland (373 US 83), as interpreted in
Hence defendant’s application for a hearing, and his underlying motion for suppression of breathalyzer test results on the grounds that the prosecution’s failure to collect a breath sample for retesting violated defendant’s due process rights, are denied.