People v. Seide

Joseph F. Cawley, Binghamton, for defendant. Gerald A. Keene, District Attorney, Owego, for plaintiff.

OPINION OF THE COURT

ROBERT W. HENNING, J. The defendant, Marcia G. Seide, was charged by Trooper Edward T. Kiluk of the New York State Police on December 28, by the New York State Department of Health (DOH) and on a list of devices approved by the Federal Department of Transportation/National Highway Traffic Safety Administration. The People cite People v Hampe (181 AD2d 238, 240 [3d Dept 1992]):

"With respect to testing by standard breathalyzer devices, New York courts have concluded that general acceptance by the scientific community had been sufficiently established so as to obviate the necessity of submitting evidence of the reliability of the test in every case . . . In our view, the general acceptance of the reliability and accuracy of the test results of the BAC Verifier, sufficient to dispense with the foundational evidence thereof through expert testimony, was established by reason of the specific inclusion of the BAC Verifier in the list of breath-testing instruments approved by DOH in regulations promulgated pursuant to Vehicle and Traffic Law § 1194 (4) (c) ( see, 10 NYCRR 59.4 [b] [19] [i])."

Hampe further held (at 241) that, "Absent the submission of evidence casting doubt upon the accuracy or reliability of the BAC Verifier test, it is our conclusion that, consistent with the purpose of Vehicle and Traffic Law § 1194 (4) (c), the device's acceptance by DOH and the Federal Department of Transportation/National Highway Traffic Safety Administration is sufficient to dispense with expert testimony of the accuracy and reliability of the test in establishing a foundation for the admissibility of the BAC Verifier test results." The defendant has not submitted any evidence in his motion that would cast doubt on the accuracy or reliability of the Draeger. The court therefore must rely on Vehicle and Traffic Law § 1194 (4) (c) and the list of breath-testing devices approved by the DOH which has already determined the accuracy and reliability of the instrument in question. The court did find that Mickle was decided on another issue that is not before this court and that Hampe addressed the issue of the reliability and accuracy of breath-testing instruments on the DOH approved list. There is no need nor any legal basis to conduct a Frye hearing in this matter.