If a defendant takes a breath test, in all likelihood the prosecutor will try to have their BAC score admitted at the trial. A summary of the legal requirements for the admission of a breath test score that must be met by the prosecutor is set forth below.
In People v. Donaldson, (People v Donaldson 36 AD2d 37) the court set forth what constitutes a proper foundation for the admission of a breath test score at trial. In admitting the breath test result, the court wrote:
“The evidence as to the operation of the Breathalyzer was adequate. The officer who administered the test was qualified in that respect by his training received at the State Police School given by personnel of the New York State Police laboratory…. Additionally, there was ample proof that the instrument was properly calibrated and that the chemicals used in the test were of the proper kind, and mixed in the proper proportion. There was also adequate proof that the entire test had been administered in accordance with the rules and regulations of the State Police Department.”
(People v Donaldson 36 AD2d 37, 40-41)
To establish a proper foundation for the admission of breath test score from an instrument that has received judicial recognition, it would appear that, at a minimum, the prosecutor must undertake the following course of action at trial:
a. Offer a Certificate of Calibration {see NYS Civil Practice Laws and Rules sec. 4518 (c)} to establish that the instrument was working properly at the time of the defendant’s breath test;
b. Offer a Certificate of Analysis — Simulator Solution {see NYS Civil Practice Laws and Rules sec. 4518 (c)} to establish that the alcohol content of the simulator solution used to test the breath test device was within the accepted levels {see, for example, 10 NYCRR 59.5(d)};
c. Offer a copy of the test operator’s Breath Analyzer Operator Permit and rely on the presumption set forth in NYS Vehicle and Traffic Law sec. 1194-4 (c) to establish that the test was properly administered. The presumption in NYS Vehicle and Traffic Law sec. 1194-4 (c) is merely “permissive” and not mandatory. {see (People v Mertz 68 NY2d 136)}.
This documentation is frequently obtained by defense counsel during the discovery phase of a client’s case under CPL §240.20. Please be sure to speak with our attorneys if you have questions about these documents.