People v. Mickle

PETER E. STELLING, J. The defendant moved this court for an order suppressing evidence, and any information obtained therefrom and suppressing the use of said evidence upon the trial of Jeffrey C. Mickle, Gower, 42 NY2d 117, supra; People v Ippolito, 100 AD2d 734.) However, the "six-month rule" is not so clearly framed. Those cases cited by the People above answer the question of such a rule in the negative. However, it is also apparent that many courts view People v Todd (38 NY2d 755, supra) as a clear and controlling authority for support of the proposition of a "six-month rule." This court agrees and finds it to be dispositive here. The rule may be modified at some point by a higher court; however, this court sees no lower court rulings that have been confirmed or overruled by the Court of Appeals. In the absence of such pronouncement, six months is the rule of Todd. The issue at hand is further obfuscated by the introduction of the Draeger and its radically different technology. As a new computerized breath-testing device, it self-calibrates and runs diagnostic tests during every breath test. The People argue that there is no "six-month rule" and that the People only need to introduce evidence from which the trier of fact could reasonably conclude that the testing device was in proper working order. Assuming, arguendo, if that is the case, this court does not see itself as empowered to make a scientific evaluation of this instrument vis-à -vis the previous breath analysis machines it replaced. While one might think an inherent superiority would exist in such advanced technology, that cannot be assumed. History is replete with examples of new technology which was widely heralded at the time of its introduction, but later proved to be fatally flawed. It is therefore ordered that said motion be granted, and it is further ordered that the District Attorney of Columbia County be and is restrained and precluded from using, upon the trial of the above-named defendant, any of the said evidence—the Draeger Alcotest performed on Jeffrey Mickle on July 29, 2000. In that the People failed to lay a sufficient foundation as to the reliability of the Draeger and lacking existing case law on this new instrument it appears that the rule of Todd applies and proper foundation for the Draeger can only be accomplished through testimony by an independent expert witness from the scientific community.