Touro Law Review Touro Law Review
Volume 29
Number 4
Annual New York State Constitutional
Issue
Article 20
March 2014
Admissibility of Field Test Results at Trial to Prove Intoxication Admissibility of Field Test Results at Trial to Prove Intoxication
Vincent J. Costa
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1379
ADMISSIBILITY OF FIELD TEST RESULTS AT TRIAL TO
PROVE INTOXICATION
SUPREME COURT OF NEW YORK
NEW YORK COUNTY
People v. Aliaj
1
(decided May 21, 2012)
I. FACTUAL BACKGROUND
In People v. Aliaj, New York County’s Supreme Court was
faced with the question of whether the results of a portable breath test
administered during a traffic stop are admissible at trial to prove in-
toxication.
2
The court acknowledged that other trial courts in New
York have been applying different standards regarding the admissi-
bility of such tests, and proposed a variety of factors that should be
considered before such portable test results may be admissible.
3
In
this case, the Defendant was pulled over and arrested in the early
morning hours of July 11, 2010, for driving while intoxicated.
4
The
events that precipitated the arrest were relatively routine.
5
The police
officer stopped the Defendant for driving through a stop sign.
6
The
officer did not suspect that the Defendant was under the influence of
any substances, although the area was well known for its night life.
7
The Defendant initially denied consuming any alcohol when he was
first questioned, but the officer had sensed an alcoholic odor and
asked the Defendant to exit the vehicle and submit to a breath test.
8
After agreeing to the test, the Defendant admitted to having a “couple
1
946 N.Y.S.2d 430 (Sup. Ct. 2012).
2
Id. at 431.
3
Id. at 431-32.
4
Id. at 432.
5
Id. at 432-34.
6
Aliaj, 946 N.Y.S.2d at 432.
7
Id.
8
Id. at 432-33. The officer admitted that the Defendant did not exhibit any other visible
signs of intoxication. Id. at 434.
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of drinks” despite his earlier denial.
9
The officer admitted that alt-
hough he observed the Defendant during the five minutes that had
elapsed between the initial stop and the breath test, he had not done
so with the intention of observing any activities that could have
skewed future breath test results.
10
The breath test device utilized at the stop was previously used
by the arresting officer approximately sixty-five times.
11
The officer
received one-day training for the device’s use in 1998 and this was
the only device this particular officer was qualified to use.
12
The de-
vice was stored in the rear seat of the officer’s car, required calibra-
tion once per year and was shared by multiple officers in the past.
13
The officer’s testimony indicated that the machine was properly cali-
brated before the test was given.
14
After the Defendant’s test reading
of a 0.110, performed on a CMI portable SD2 device, he was brought
into the precinct.
15
Approximately an hour and a half after the initial breath test
(with the SD2) the Defendant was subjected to a chemical test (an
Intoxilyzer test) at the police precinct, which returned a 0.081 read-
ing.
16
The Intoxilyzer was properly calibrated and was administered
by an officer, certified as a Breath Analysis Operator, who observed
the defendant carefully for twenty minutes.
17
It was also determined
that the Defendant passed two of the three physical coordination tests
he was given without incident.
18
The court held that although gener-
ally there was no question concerning the reliability and admissibility
of the Intoxilyzer test at a trial, the field test conducted by the officer
9
Id. at 433. Later at the precinct, the Defendant stated that he had consumed two beers
within an hour and a half. Aliaj, 946 N.Y.S.2d at 434.
10
Id. at 433-34. Unknown to the officer at the time, protocol dictates that the defendant is
to be monitored for fifteen to twenty minutes for any activity that may disrupt an accurate
reading, such as eating, vomiting, drinking, etc. Id.
11
Id. at 433.
12
Id. The officer was unsure if his training included information that breath devices are
subject to Radio Frequency Interference, which may disrupt reliability, if an officer answers
a radio while the device is transmitting information. Aliaj, 946 N.Y.S.2d at 433.
13
Id. at 434. This particular machine was last calibrated on April 22, 2010, approximately
three months before it was used on the Defendant. Id.
14
Id. at 433.
15
Id. at 434.
16
Aliaj, 946 N.Y.S.2d at 434. The Intoxilyzer self-calibrates upon activation. Id.
17
Id. at 434-35.
18
Id. at 434 (noting the defendant made only one mistake on the third test corresponds to
alcohol impairment). Both the Intoxilyzer test and the coordination tests at the precinct were
video recorded. Id.
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2013] ADMISSIBILITY OF FIELD TEST RESULTS 1381
with the portable SD2, in this instance, did not meet the criteria nec-
essary for admissibility at trial.
19
II. FIELD TEST RESULTS ARE NOT PROTECTED BY A
DEFENDANT’S CONSTITUTIONAL RIGHT AGAINST SELF-
INCRIMINATION
Individuals are guaranteed by both the federal and state con-
stitutions that they shall not “be compelled in any criminal case to be
a witness against” themselves.
20
This privilege against self-
incrimination arises when a person is compelled to provide “evidence
of a testimonial or communicative nature.”
21
The Supreme Court in
Crawford v. Washington
22
held, in part, that states are free to develop
their own hearsay rules regarding the admissibility of non-testimonial
evidence.
23
Crawford was tried for assault and attempted murder
arising from the stabbing of a man who allegedly tried to rape his
wife.
24
His wife had previously made a statement during a police in-
terrogation that stated Crawford did not act in self defense.
25
The
prosecution played the wife’s recorded message to the jury.
26
The
state’s marital privilege prevented the wife from testifying at trial,
and thus, Crawford was unable to cross-examine this testimony.
27
The Supreme Court found that because the recording was testimonial
in nature and there was no opportunity to cross-examine the witness,
that Crawford’s constitutional rights guaranteed under the Confronta-
tion Clause were violated.
28
The absence of any opportunity to cross-
examine was enough to support the Court’s decision and the issue of
reliability, therefore, was not a factor in the holding.
29
The court in Crawford “le[ft] for another day” the types of ev-
idence that may be considered testimonial in nature, but the Supreme
19
Aliaj, 946 N.Y.S.2d at 441.
20
People v. Berg, 708 N.E.2d 979, 980 (N.Y. 1999); U.S. CONST. amend. V; N.Y. CONST.,
art. I, § 6.
21
People v. Hager, 505 N.E.2d 237, 238 (N.Y. 1987); Schmerber v. California, 384 U.S.
757, 761 (1966).
22
541 U.S. 36 (2004).
23
Id. at 68.
24
Id. at 38, 40.
25
Id. at 38.
26
Id.
27
Crawford, 541 U.S. at 40.
28
Id. at 68.
29
Id.
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Court has since begun to define the term.
30
In Melendez-Diaz v.
Massachusetts,
31
a drug trafficking case, the Court applied Craw-
ford’s holding that “[t]he Sixth Amendment does not permit the pros-
ecution to prove its case via ex parte out-of-court affidavits.”
32
The
trial court permitted the prosecution to introduce affidavits of foren-
sic test results that identified the substance in the defendant’s posses-
sion as cocaine.
33
The court denied defense counsel’s request to
cross-examine the analysts responsible for the forensic analysis.
34
The Supreme Court stated that the affidavits did not fall under a busi-
ness records exception to hearsay, were clearly prepared for litigation
and, therefore, testimonial in nature.
35
The court explained that when
the purpose of a regularly conducted business activity is to produce
evidence for trial, this activity invokes a defendant’s rights under the
Confrontation Clause.
36
The Confrontation Clause was intended to
provide a defendant with means to contest the accuracy and reliability
of these types of test results, and guard against fraud or incompe-
tence.
37
Testimonial or communicative evidence are indicative of a
person’s “subjective knowledge or thought processes.”
38
Physical
performance tests or field sobriety tests require observation and in-
terpretation by law enforcement officials and do not reveal any sub-
jective knowledge of the defendant that may be used against him in a
judicial proceeding.
39
In addition, documentary evidence such as cal-
ibration and maintenance schedules, necessary for establishing a
proper foundation, may be admitted into evidence without concern of
the preparer’s availability for cross-examination.
40
Evidence such as
this, required for a proper foundation, are not the “result from struc-
30
Id.
31
557 U.S. 305 (2009).
32
Id. at 329; see Crawford, 541 U.S. at 51-52.
33
Melendez-Diaz, 557 U.S. at 307.
34
Id. at 309.
35
Id. at 311, 322.
36
Id. at 321; U.S. CONST. amend. VI (establishing the right of a defendant “to be con-
fronted with the witnesses against him”).
37
Melendez-Diaz, 557 U.S. at 319.
38
Hager, 505 N.E.2d at 238.
39
Id.
40
People v. Lent, 908 N.Y.S.2d 804, 808-10 (App. Term 2010); see People v Lebrecht,
823 N.Y.S.2d 824, 828 (App. Term 2006) (noting that although the documents are often
used in litigation, they were not specifically prepared for that purpose); People v. Stevenson,
873 N.Y.S.2d 236 (App. Term 2008).
4
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tured police questioning, they are not created in response to any effort
at gathering incriminating evidence against a particular accused, [but
instead] reflect objective facts without discretionary aspect.”
41
It is well-settled that field sobriety tests, taken during a tem-
porary roadside detention, may be admitted into evidence regardless
of whether the defendant has been issued Miranda warnings.
42
The
privilege against self-incrimination has not been extended to occa-
sions where a defendant has been compelled to “submit to finger-
printing, photographing, or measurements, to write or speak for iden-
tification, to appear in court, to stand, to assume a stance, to walk, or
to make a particular gesture.”
43
Conduct that does not “constitut[e] a
custodial interrogation, is admissible.”
44
A field sobriety test admin-
istered during a traffic stop is not “the equivalent of real or physical
evidence [ ] protected under the Fifth Amendment.”
45
The element of
compulsion is absent because the defendant ultimately retains the op-
tion of whether or not to submit to a field test.
46
“[A] temporary
roadside detention pursuant to a routine traffic stop is not custodial
within the meaning of Miranda.”
47
However, a roadside detention
may become custodial if a reasonable person in the defendant’s posi-
tion would believe he is no longer free to leave.
48
Neither the of-
ficer’s nor the defendant’s subjective belief are determinative in de-
ciding whether a temporary detention has become custodial.
49
So
long as the temporary roadside detention remains non-custodial, Mi-
randa warnings are unnecessary, and statements or evidence collected
during this period may be considered voluntary.
50
41
Lent, 908 N.Y.S.2d at 808-09.
42
Berg, 708 N.E.2d at 980 (holding evidence of a defendant’s refusal to submit to a
breathalyzer may be admissible at trial); Hager, 505 N.E.2d at 238; People v. Jacquin, 522
N.E.2d 1026, 1027 (N.Y. 1988).
43
Schmerber, 384 U.S. at 764.
44
Jacquin, 522 N.E.2d at 1027.
45
People v. Havrish, 866 N.E.2d 1009, 1013 (N.Y. 2007).
46
South Dakota v. Neville, 459 U.S. 553, 563-64 (1983).
47
People v. Parris, 809 N.Y.S.2d 176, 177 (App. Div. 2d Dep’t 2006) (quoting People v.
Myers, 766 N.Y.S.2d 581, 582 (App. Div. 2d Dep’t 2003)); see Miranda v. Arizona, 384
U.S. 436, 478-79 (1966) (providing that before evidence procured from a custodial interro-
gation may be admitted at trial, a defendant must be expressly warned of his constitutional
rights against self-incrimination); see also People v. Mackenzie, No. 2002-55 OR CR, 2005
WL 2358350, at * 1 (N.Y. App. Term 2005) (adding that “limited questioning appropriate to
such investigations and the administration of performance tests” are similarly permissible).
48
People v. Yukl, 256 N.E.2d 172, 174 (N.Y. 1969).
49
Id.; Hicks v. United States, 382 F.2d 158, 161 (D.C. Cir. 1967).
50
People v. Parulski, 716 N.Y.S.2d 260, 261 (App. Div. 4th Dep’t 2000); Mackenzie,
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Furthermore, the Supreme Court has held that an individual’s
bodily fluids, including one’s breath, may be subject to a warrantless
taking in order to preserve evidence that would otherwise be de-
stroyed.
51
As long as the law enforcement official reasonably be-
lieved that evidence would likely be destroyed during the time
elapsed to obtain a warrant, the Fourth Amendment protection against
warrantless searches does not apply.
52
However, the test must still be
applied in reasonable matter, regardless of the absence of Fourth
Amendment protection.
53
III. NEW YORK LEGISLATIVE HISTORY AND JUDICIAL
INTERPRETATION
New York courts have taken a variety of conflicting ap-
proaches in recent years regarding the admissibility of portable field
test results to demonstrate a person’s intoxication.
54
To understand
why there is such difficulty in achieving uniform results at the trial
court level, one must first look to the statutory language that governs
field tests and chemical tests, and the standards set forth therein.
55
New York Vehicle and Traffic Law differentiates a field test from a
chemical test.
56
A police officer may subject an individual to a field
test when a motor vehicle operator has either been in an accident or
the individual has operated the motor vehicle in violation of Vehicle
and Traffic Law § 1194.
57
Upon a positive field test showing, or a
reasonable belief that the individual has consumed alcohol, an officer
may request a chemical test be administered within two hours of the
field test.
58
However, while the Vehicle and Traffic Law addresses the
admissibility of a valid chemical test, it does not explicitly address
2005 WL 2358350, at * 1.
51
Schmerber, 384 U.S. at 770.
52
Id. (noting that an individual’s blood to alcohol ratio may change substantially over a
short period of time); U.S. CONST. amend. IV (protecting “[t]he right of the people to be se-
cure in their persons, houses, papers, and effects, against unreasonable searches and sei-
zures”).
53
Schmerber, 384 U.S. at 771.
54
Aliaj, 946 N.Y.S.2d at 431-32.
55
Id. at 432.
56
N.Y. VEH. & TRAF. LAW § 1194 (McKinney 2010).
57
N.Y. VEH. & TRAF. LAW § 1194(1)(b) (McKinney 2010).
58
N.Y. VEH. & TRAF. LAW § 1194(2) (McKinney 2010).
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the admissibility of a portable field test results at trial.
59
Thus, while
there is no dispute regarding the admissibility of the results of a
properly administered chemical test, the Vehicle and Traffic Law has
seemingly left it to the court system to decide whether field test re-
sults are admissible to prove intoxication.
60
To further complicate
matters for the courts, the New York State Department of Health has
adopted the National Highway Traffic Safety Administration’s
(NHTSA) list of breath measurement devices deemed to have met
standard reliability criteria.
61
This list includes some portable breath
testing devices.
62
Some New York courts have regarded the Vehicle and Traffic
Law’s silence on field test admissibility as an indication that portable
breath tests may never be admissible at trial to demonstrate a defend-
ant’s intoxication.
63
In People v. Thomas,
64
the defendant claimed
that mechanical automotive defects caused his car to collide with an-
other automobile, killing the driver.
65
At the scene, the defendant
was subjected to a preliminary screening test which indicated the
presence of alcohol.
66
He was arrested, brought to the precinct, and
later registered a 0.14% on a breathalyzer test.
67
At the trial, the re-
sults of the breathalyzer test at the precinct were introduced as well as
testimony regarding the screening test.
68
The defendant was convict-
ed of driving under the influence of alcohol, as well as other charges,
and he appealed the judgment.
69
The defendant argued that he was
unfairly prejudiced by the jury’s use of the field test at trial to prove
59
N.Y. VEH. & TRAF. LAW § 1195(1) (McKinney 2010) (“Upon the trial of any action or
proceeding arising out of actions alleged to have been committed by any person arrested for
a violation of any subdivision of section eleven hundred ninety-two of this article, the court
shall admit evidence of the amount of alcohol or drugs in the defendant’s blood as shown by
a test administered pursuant to the provisions of section eleven hundred ninety-four of this
article.”).
60
Id.
61
Aliaj, 946 N.Y.S.2d at 436; N.Y. VEH. & TRAF. LAW § 1194(6)(c) (McKinney 2010);
N.Y. COMP. CODES R. & REGS. tit. 10, § 59.4(b) (2012).
62
See People v. Jones, 927 N.Y.S.2d 586, 588-89 (Crim. Ct. 2011) (recognizing the port-
able device at issue was on the conforming products list).
63
Aliaj, 946 N.Y.S.2d at 431.
64
509 N.Y.S.2d 668 (App. Div. 4th Dep’t 1986), aff’d, 517 N.E.2d 1323 (N.Y. 1987).
65
Id. at 670.
66
Id.
67
Id.
68
Id.
69
Thomas, 509 N.Y.S.2d at 670.
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his intoxication.
70
The appellate court agreed with the defendant stat-
ing that “[t]he Alco-Sensor testimony was clearly not admissible to
show intoxication.”
71
The court reasoned that the People did not pre-
sent the proper foundation demonstrating the device’s reliability to
permit admission at trial for the purpose of proving intoxication.
72
The court recognized the admissibility of screening test results for the
purpose of establishing probable cause to make an arrest, but stated
that the results are not required as part of the foundation for the re-
sults of the subsequent test at the precinct to be admissible.
73
The
appellate court reversed the convictions, ordered a new trial and the
People appealed.
74
The Court of Appeals affirmed the appellate
court’s decision, agreeing that the field test results were irrelevant in
regard to the defendant’s intoxication.
75
In People v. Reed,
76
the defendant, charged with driving while
intoxicated, asserted that field test results should have been sup-
pressed as a result of an administrative defect.
77
The People wished
to use the field test results as evidence of intoxication.
78
A chemical
test was not administered within two hours of the field test, a stand-
ard established by the legislature.
79
The court recognized that “the
purpose of a field test is to provide probable cause for [an] arrest, ra-
ther than to serve as evidence at trial.”
80
The court stated that the
“[l]egislature intended to differentiate between preliminary tests done
at the scene of the crime and those conducted back at the station
house” due to issues concerning accuracy and reliability.
81
Despite
the inclusion of the field test device on the approved instrument list,
the court concluded that the results could not be introduced against
the defendant.
82
70
Id. at 671 (noting the absence of a limiting instruction to the jury).
71
Id.
72
Id.
73
Id. at 671-72 (noting that the requisite two-hour time frame between tests, proof the de-
vice was properly functioning and certification of the device’s internal chemical elements are
part of the necessary foundation).
74
Thomas, 509 N.Y.S.2d at 671.
75
People v. Thomas, 517 N.E.2d 1323, 1323-24 (N.Y. 1987).
76
No. 2003BX039117, 2004 WL 2954905, at *1 (N.Y. Sup. Ct. Dec. 15, 2004).
77
Id.
78
Id.
79
Id.; N.Y. VEH. & TRAF. LAW § 1194(2)(a)(2) (McKinney 2010).
80
Reed, 2004 WL 2954905, at *5.
81
Id. at *7.
82
Id. at *6-*7 (taking the plain meaning of the statute, case law, and the People’s admis-
8
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In People v. Santana,
83
the defendant was charged with driv-
ing while intoxicated and sought to exclude any evidence pertaining
to his portable breath test results.
84
The court stated that Vehicle and
Traffic Law dictates that the field test is to be used only for a proba-
ble cause determination and only the chemical test is admissible at
trial to prove intoxication.
85
Although the device at hand was includ-
ed on the list of approved instruments, the court concluded the statu-
tory language does not permit the admission of field test results at tri-
al.
86
In granting the defendant’s motion to suppress, the court
substantiated its ruling by addressing evidentiary reliability concerns
with allowing utilization of field tests for more than a probable cause
determination.
87
In addition, the court was concerned that the de-
fendant’s due process rights would be violated if he were not in-
formed at the time of testing that the evidence may be used against
him at trial.
88
The court concluded that “[t]o admit evidence of a
portable breath test in a case in chief would be to circumvent the
law.”
89
In People v. Harper,
90
the police were dispatched in response
to a domestic disturbance.
91
They found the defendant outside of his
apartment building, and although the defendant seemed confused, the
officers did not observe any outward signs of intoxication.
92
The dis-
pute allegedly arose because the defendant and his girlfriend had
been drinking and the defendant felt she should not be driving with
alcohol in her system.
93
The police did not issue any citations and
moved on to an apartment building closeby.
94
It was here that the of-
ficer observed a vehicle swerving over the center line in the road, and
upon pulling the vehicle over, discovered it was the same man from
sion that field tests are meant to establish probable cause to make an arrest into considera-
tion).
83
No. 2010NY044345, 2011 WL 2119503, at *1 (N.Y. Sup. Ct. May 16, 2011).
84
Id.
85
Id.; see N.Y. VEH. & TRAF. LAW § 1194.
86
Santana, 2011 WL 2119503, at *1.
87
Id. at *2 (noting that some states video record field tests and this procedure lends relia-
bility to the process).
88
Id.
89
Id.
90
No. 07 06 0113, 2007 WL 4571180, at *1 (N.Y. Just. Ct. 2007).
91
Id.
92
Id.
93
Id.
94
Id.
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the domestic dispute.
95
The defendant failed three sobriety tests at
the scene and was eventually arrested after a field test revealed the
presence of alcohol.
96
When admission of field test results was chal-
lenged by the defense at trial, the court stated that a field test may be
a factor used to establish probable cause for an arrest, but taken alone
it is insufficient, as a finding of probable cause is based on the totality
of the circumstances.
97
Agreeing with the court in Thomas, the court
held that a field test is inadmissible at trial to establish a defendant’s
intoxication due to insufficient reliability of the test.
98
In People v. MacDonald,
99
the defendant was convicted of
driving while impaired and criminally negligent homicide.
100
He was
involved in a motorcycle accident which resulted in the death of his
wife who was riding with him.
101
Medical personnel that arrived on
the scene smelled alcohol on the defendant and noticed his speech
and motor skills were impaired.
102
The defendant failed to complete
an alcohol pre-screening test at the scene of the accident.
103
The de-
fendant contended that any testimony elicited at trial regarding the
field test was improperly admitted.
104
The appellate court acknowl-
edged that alcohol pre-screening results are not admissible as proof of
intoxication, but found that the People introduced the test, namely the
failure to complete it, as evidence of the defendant’s guilty con-
science.
105
Other courts in New York have determined that portable
breath tests may be admissible at trial if the People can establish a
proper foundation for reliability.
106
In People v. Jones,
107
the trial
court permitted the results of a portable breath test into evidence to
demonstrate the defendant’s blood alcohol content.
108
Expressly dis-
agreeing with the holdings in Santana and Reed, the court justified
95
Harper, 2007 WL 4571180, at *1.
96
Id. at *2.
97
Id. at *4.
98
Id.
99
641 N.Y.S.2d 749 (App. Div. 3d Dep’t. 1996).
100
Id. at 750.
101
Id.
102
Id. at 751.
103
Id.
104
MacDonald, 641 N.Y.S.2d at 751.
105
Id.
106
Aliaj, 946 N.Y.S.2d at 431-32.
107
927 N.Y.S.2d 586 (Crim. Ct. 2011).
108
Id. at 588.
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the admission by stating that “the portability or immobility of a
breath testing device is not a factor relevant to the admissibility of its
results.”
109
The court stated that the only relevant inquiry that must
be made, before admission of portable breath test results, is whether
the People have established a proper foundation.
110
Whether or not
the officer at the scene continually observed the defendant for fifteen
minutes is not a determinative factor, but merely goes to the strength
of the evidence.
111
The device must be properly used, must be in
proper working order, and the results must be scientifically relia-
ble.
112
A device’s reliability is substantiated when it is included on
the National Highway Traffic Safety Administration’s List of Eviden-
tial Breath Alcohol Measurement Devices.
113
The court asserted that
once a device is identified on this list, it is unnecessary for the People
to lay a foundation to establish the device’s accuracy and reliabil-
ity.
114
Inclusion on the list of approved devices also eliminates the
necessity for expert testimony at trial.
115
In People v. Hargobind,
116
the defendant was arrested after he
was stopped by an officer who observed indicia of intoxication.
117
The People moved to have the results of the portable breath test ad-
ministered to the defendant admitted into evidence.
118
The defendant
asserted that the court in Thomas held that portable breath test results
cannot be introduced to prove intoxication.
119
The court in
Hargobind rejected this contention, explaining that the court in
Thomas “did not categorically rule out the admission of field breath
tests,” but instead held that a proper foundation was not established in
that case by the People.
120
The court noted New York Vehicle and
Traffic Law does not explicitly bar the admission of field test results
at trial.
121
Furthermore, facts such as the device’s inclusion on the
109
Id. at 588, 590.
110
Id. at 588.
111
Id. at 591.
112
Jones, 927 N.Y.S.2d at 588.
113
Id. (stating the portability of a device on the list is irrelevant).
114
Id.
115
Id.; Lent, 908 N.Y.S.2d at 806 (asserting that the inclusion of a device on the approved
list leaves no question as to the scientific accuracy).
116
No. 2009KN024543, 2012 WL 762897, at *1 (N.Y. Crim. Ct. 2012).
117
Id.
118
Id.
119
Id. at *2.
120
Id.
121
Hargobind, 2012 WL 762897, at *2.
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approved list or the portable nature of the device are not dispositive
on the issue of admissibility.
122
Rather, the court stated to lay a prop-
er foundation for admissibility, the People must show that “the device
had been tested, producing a reference standard, within a reasonable
period prior to [d]efendant’s test.”
123
In addition, there must be evi-
dence of proper calibration, proper administration of the test, and po-
lice observation of the defendant for a minimum of fifteen minutes
before the test is given.
124
These guidelines for laying a foundation
compensate for the lack of a controlled environment and aid in ensur-
ing reliable results.
125
Upon establishing these criteria, the court
granted the People’s motion to admit the test results contingent on a
showing of a proper foundation.
126
IV. OUT-OF-STATE APPROACHES
A. California
In California, the courts have allowed results of portable
breath tests into evidence as long as the device and methods used
comply with California’s statutory provisions governing proce-
dures.
127
Portable breath tests are admissible as long as the machine
is properly functioning and is administered properly by a qualified
individual.
128
In People v. Williams
129
the defendant sought to sup-
press portable breath test results on the grounds that the officer did
not adhere to the proper procedures set by legislature.
130
The arrest-
ing officer directly observed the defendant for “[thirteen] instead of
[fifteen] minutes,” and decided to take only “one [test] instead of two
tests.”
131
The California Supreme Court held that even though every
procedure was not followed, the evidence was still admissible.
132
The
122
Id. at *2-*3.
123
Id. at *4.
124
Id.
125
Id.
126
Hargobind, 2012 WL 762897, at *5.
127
See People v. Williams, 49 P.3d 203, 209 (Cal. 2002); see also People v. Wilson, 8
Cal. Rptr. 3d 167, 170 (2003).
128
People v. Bury, 49 Cal. Rptr. 2d 107, 111 (1996).
129
49 P.3d 203 (Cal. 2002).
130
Id. at 204.
131
Id. at 208.
132
Id.
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court reasoned that the officer’s failures were only minor and “could
not produce false positive results.”
133
The court emphasized, howev-
er, the importance of complying with the procedures as it “guarantees
the People quick and certain admission of evidence, eliminating labo-
rious qualification, critical cross-examination, and the risk of exclu-
sion.”
134
The defendant in People v. Wilson
135
also attempted to sup-
press his breath test results.
136
The court acknowledged that portable
breath test results are admissible if the prosecution can establish the
foundational requirements as established in Bury.
137
The court noted
that there are scientific differences between chemical tests and porta-
ble breath tests, and although a portable breath test may not be the
equivalent of a chemical test, it can be utilized to prove a defendant’s
guilt nonetheless.
138
In essence, the portable breath test should be
used to establish probable cause for the more reliable and accurate
chemical test, but this does not preclude portable breath test results
from serving as an important piece of evidence at trial.
139
B. New Jersey
In State v. Chun,
140
the New Jersey supreme court established
guidelines to govern the admissibility of portable breath test results
so “prosecutions should be able to proceed in an orderly and uniform
fashion.”
141
Chun was a consolidated action of twenty convicted de-
fendants who challenged the admission of their portable breath test
results at trial.
142
The court, in analyzing the scientific reliability and
admissibility of the portable breath test at issue, looked to the legisla-
tive framework for guidance.
143
The court noted over the past few
decades, the New Jersey legislature has become more and more strin-
133
Id.
134
Williams, 49 P.3d at 209 (noting that compliance with regulations ensures accurate and
reliable results).
135
8 Cal. Rptr. 3d 167 (2003).
136
Id. at 168.
137
Id. at 169-70.
138
Id. at 171.
139
Id. at 171-72.
140
943 A.2d 114 (N.J. 2008).
141
Id. at 121.
142
Id. The device at issue in this case was the Alcotest 7110 MKIII-C. Id. at 120.
143
Id. at 123-24 (recognizing that it was the legislature’s intent to enable efficient and
successful prosecutions of drunk drivers).
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gent with the rules governing intoxicated drivers.
144
The court
acknowledged that although New Jersey violations are determined
according to the blood to alcohol concentration, practicalities call for
breath testing to be an acceptable method for arrest and conviction.
145
Since portable breath tests are the preferred method of detecting im-
paired drivers, the court voiced their concern about the precision and
accuracy of the device.
146
For example, protocol dictates a twenty
minute observation of the defendant prior to the test, a control test to
ensure the device is calibrated properly, and requires two samples to
be taken.
147
After a detailed analysis of the scientific specifications and
procedures, the court addressed possible Confrontation Clause issues
with the evidence needed to establish a foundation for breath test re-
sults, particularly documents regarding the operator’s qualifications,
documents demonstrating the machine’s condition, and the report
generated by the device.
148
The court stated that a certificate showing
the operator’s qualifications clearly falls within New Jersey’s busi-
ness record exception to hearsay and would pose no Confrontation
Clause violation, especially because the device operator typically tes-
tifies at trial.
149
Documents pertaining to the test machine also fall
within the business record exception and are neither testimonial in
nature nor are they typically “subject to manipulation by the prepar-
er.”
150
Documents needed to establish a proper foundation include
“the most recent calibration report prior to a defendant’s test”, the
“credentials of the coordinator who performed the calibration”, and
“the certificate of analysis of the [ ] simulator solution used in a de-
fendant’s control tests.”
151
The court recognized that even though the
test results may incriminate the defendant, they are non-
testimonial.
152
They represent a present report of information con-
144
Chun, 943 A.2d at 124-25 (noting the gradual decrease in alcohol tolerance and the
increase in penalties, including a decrease in the acceptable BAC content and the zero toler-
ance policy towards drivers under the age of twenty-one).
145
Id. at 127 (stating that the ease of administering a breath test in comparison to a blood
test make it a preferable testing method).
146
Id. at 127-28.
147
Id. at 129-30.
148
Id. at 165.
149
Chun, 943 A.2d at 166.
150
Id. at 167.
151
Id. at 169.
152
Id. at 169-70.
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temporaneously recorded by a machine unable to be influenced by
the operator, and could very well clear the name of the test subject.
153
Despite the conclusion that the report is non-testimonial, the court di-
rected that the availability of the device’s operator to testify was still
required.
154
By requiring these documents and instituting safeguards
to protect the defendant, the court established groundwork to ensure
that the machine’s results are scientifically reliable and declared the
framework above a requisite to permit portable breath test results into
evidence.
155
In State v. Holland,
156
the defendants challenged the admis-
sion of his portable breath test results on the grounds that the use of
an alternate manufacturer’s temperature probe in the testing device
rendered the results inadmissible under the Chun standard.
157
The de-
fendants argued that the guidelines established in Chun must be
strictly adhered to and calibration with an alternate temperature probe
should render the results inadmissible.
158
The court stated that
“breath-testing devices, known as breathalyzers, are scientifically re-
liable and accurate instruments used for determining BAC.”
159
The
court noted that Chun’s foundational requirements are not the end of
the inquiry, but the State must produce any other non-core founda-
tional documents, as referenced in Chun, that may expose flaws in
the testing process.
160
The court held that failure to produce the exact
non-core documents referenced in Chun does not automatically ren-
der the results inadmissible.
161
The emphasis, the court states, should
not be on a particular probe or piece of documentation, but the ability
to produce appropriate documentation that demonstrates the accuracy
and reliability of the testing device.
162
The court explained that once
the State meets its burden to qualify admission, the defense may then
153
Id. at 170.
154
Chun, 943 A.2d at 170 (implementing the need for the operator’s testimony as a safe-
guard).
155
Id.
156
27 A.3d 1212 (N.J. Super. Ct. App. Div. 2011).
157
Id. at 1214.
158
Id. Rather than the Ertco Hart probe used in Chun, a Control Company probe was uti-
lized in this particular device. Id.
159
Id. at 1215 (adding that a test reading over the legal limit is a per se violation of driv-
ing while intoxicated).
160
Holland, 27 A.3d at 1217.
161
Id. at 1218.
162
Id. at 1218-19 (rejecting the defendants’ assertion that a strict interpretation of Chun,
and only an Ertco Hart probe and its supporting documents render the results admissible).
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contest the evidence with a showing that alternate components or
documentation belie a showing of unreliable results.
163
As a result,
the court found that because the lower court judge found the results
automatically inadmissible, issues regarding the reliability of the de-
vice were never properly addressed.
164
The record was insufficient to
allow the court to reach a decision on the merits, and the case was
remanded for an investigation into the reliability of the results.
165
C. Illinois
In stark contrast to the approaches used in New York, Cali-
fornia, and New Jersey, Illinois courts prohibit the prosecution from
introducing portable breath test results during a criminal proceed-
ing.
166
In People v. Rose,
167
the defendant sought to suppress his
portable breath test results on the grounds that no established authori-
ty supported admission.
168
The Illinois legislature explicitly stated
that “[t]he result of a preliminary breath screening test may be used
by the defendant as evidence in any administrative or court proceed-
ing,” but left silent whether it was similarly available to the state.
169
Reading into the absence of text indicating legislative intent to permit
prosecution to use the results in criminal proceedings, the court held
that the test was intended only to establish probable cause for an ar-
rest and is “[in]admissible by the State during its case in chief in a
criminal proceeding involving a DUI charge.”
170
In coming to this
conclusion, the court noted differences in the level of regulation and
standards between portable breath tests and chemical tests, as well as
the absence of portable breath tests from approved evidentiary devic-
es, supported its exclusion in criminal proceedings.
171
In People v. Brooks,
172
the defendant was pulled over after his
vehicle was observed swerving and he was subjected to a variety of
163
Id. at 1220.
164
Id. at 1221.
165
Holland, 27 A.3d at 1221.
166
People v. Rose, 643 N.E.2d 865, 871 (Ill. 1994).
167
643 N.E.2d 865 (Ill. 1994).
168
Id. at 866; 625 ILL. COMP. STAT. ANN. 5 / 11-501.5 (West 2001).
169
Rose, 643 N.E.2d at 867 (1994) (emphasis added); 625 ILL. COMP. STAT. ANN. 5 / 11-
501.5 (a) (West 2001).
170
Id. at 870.
171
Id. at 871.
172
778 N.E.2d 336 (Ill. App. Ct. 2002).
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field sobriety tests when the officer noticed slurred speech and eye
irritation.
173
After failing three out of the four tests given, the de-
fendant refused to take the portable breath test and was promptly ar-
rested.
174
At trial, the defendant denied failing any of the field sobrie-
ty tests and attributed any physical abnormalities observed during the
test to a surgical procedure which affected the use of his legs.
175
The
defendant was convicted at trial of DUI and appealed the verdict on
the grounds that the officer’s testimony regarding his refusal to take
the portable breath test, or any reference to the refusal, was prejudi-
cial error.
176
He argued that since portable breath test results were in-
admissible in Illinois for use by the State, any reference to the test or
refusal to take one should be equally inadmissible.
177
The State ar-
gued that mention of the portable breath test was not intended to
prove intoxication, but was intended to demonstrate a guilty mind.
178
The court found the State’s argument troublesome and reasoned that
not only could the testimony have had a substantial prejudicial effect,
but the testimony was irrelevant on the issue of guilt.
179
The court
was concerned with the possibility that the jury “could infer [the] de-
fendant’s guilt from his refusal to submit to a test, even though the
results of the test are inadmissible to prove [the] defendant’s guilt.”
180
The court held that any testimony alluding to the portable breath test,
the accuracy of the test, or the defendant’s refusal to take the test in-
admissible.
181
V. HAS THE COURT IN ALIAJ TAKEN THE PROPER APPROACH
TOWARDS PORTABLE BREATH TESTS ADMISSIBILITY OR
SHOULD COURTS LIMIT THEIR ADMISSIBILITY TO
PROBABLE CAUSE AS A MATTER OF LAW?
In Aliaj, the court admitted that a test administered at the sce-
173
Id. at 338. The field tests administered included “the horizontal-gaze-nystagmus
(HGN) test, [ ] the one-leg-stand test, [ ] the finger-count test, and [ ] the walk-and-turn test.”
Id. at 339.
174
Id.
175
Id.
176
Brooks, 778 N.E.2d at 339-40.
177
Id. at 341.
178
Id.
179
Id.
180
Id. at 342.
181
Brooks, 778 N.E.2d at 342. The court affirmed the defendant’s conviction, nonethe-
less, claiming the defendant, in this case, was not substantially prejudiced. Id. at 342-43.
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ne can be more probative of the Defendant’s intoxication at the time
of the initial violation than a test given after arrest.
182
However, if a
proper foundation for the device’s reliability is not established, the
existence of many extrinsic factors that may have skewed otherwise
reliable readings remains a possibility.
183
The court proposed that a
rebuttable presumption of inadmissibility should belie the results of
portable field test results.
184
To overcome the presumption of inad-
missibility, the court suggested that a number of factors, which the
court calls “threshold showings,” must be met.
185
The reliability of
the device must be proven either by its inclusion within the Conform-
ing Products List of Evidential Breath Alcohol Measurement Devices
or by the People at trial.
186
The test must have been properly cali-
brated and administered.
187
Finally, the officer must have had “rea-
sonable grounds to believe the motorist has committed an Alcohol
Related Violation.”
188
However, the court suggested that the inquiry should not end
if the “threshold showings” are satisfied, but more should be re-
quired.
189
A minimum fifteen minute observation period of the de-
fendant must be adhered to.
190
The test operator must be properly
qualified by either possessing a “Health Department certification or
some equivalent level of training.”
191
The device must have been
properly tested, maintained and operated.
192
Finally, the court should
review the record of the results and the circumstances surrounding
how the test was administered.
193
All of these factors should be
viewed together in total, with deficiencies in one area not necessarily
determinative of admissibility.
194
182
Aliaj, 946 N.Y.S.2d at 441.
183
Id. at 438, 441 (acknowledging that factors such as lighting, air quality, temperature,
radio interference or acoustics could skew portable field test results).
184
Id. at 438.
185
Id.
186
Id.
187
Aliaj, 946 N.Y.S.2d at 438.
188
Id.
189
Id.at 439.
190
Id. Failure to observe the defendant for the required time period will not automatically
result in exclusion, but will affect the probative value of the results. Id.
191
Aliaj, 946 N.Y.S.2d at 440.
192
Id.
193
Id. at 441.
194
Id. (stating the reliability of the device must be proven by clear and convincing evi-
dence).
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The court found that the failure to observe the Defendant
twenty minutes prior to the test, the officer’s limited training in the
use of the device, the lack of minimal safeguards on the device, and
lack of testing records weighed against admissibility in this case.
195
The court held the positive factors surrounding the test were out-
weighed by the negatives, and the results were clearly unreliable to
demonstrate that the Defendant was driving while intoxicated.
196
Throughout the opinion in Aliaj, the court expressed concern
about the lack of a New York standard regarding the admissibility of
portable breath tests, and the different approaches used in recent
years by various New York courts. Until either the legislature enacts
specific guidelines governing the admissibility of these devices in the
Vehicle and Traffic Law, or the Court of Appeals rules definitively
on the issue, the trial courts will likely continue to apply inconsistent
criteria for admission. In effect, this could prove quite damaging to a
defendant’s case depending on which court he were to be tried in.
The absence of directive statutory language in regard to field test ad-
missibility leaves the court with no alternative but to presume the leg-
islature’s intent. Some courts have interpreted the legislature’s inclu-
sion of language concerning chemical test admissions and the
absence of rules in respect to field tests as making the latter inadmis-
sible. Other courts have viewed the legislature’s silence as a door to
promulgate their own rules regarding field test admissibility.
Until there is definitive guidance, the factors outlined in Aliaj
and holding that field tests may be admissible at trial to prove intoxi-
cation could still be challenged. On one hand, it provides the prose-
cution with a tool to prove their case, while permitting the defendant
to challenge the accuracy, reliability and credibility of the test results
and surrounding circumstances. However, to get the evidence
through the door, the prosecution can still assert that the devices used
to administer the field tests are on the approved list, have passed all
the minimum guidelines set in place by Vehicle and Traffic Law, and
may fail to implement other safeguards to ensure proper results due
to reliance on the approved list. Mandatory procedures such as the
requisite observation period, calibration and record keeping, and po-
lice training are necessary to ensure that a particular device is proper-
ly used. However, external factors still remain that may lead to inac-
195
Id. at 439-41.
196
Aliaj, 946 N.Y.S.2d at 441.
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curate test results. Without a controlled environment in which the
test is to be administered, or a video recording of the test made avail-
able for judicial review, trial court judges will continue to make sub-
jective evidentiary rulings on conditions that were not accounted for,
such as weather conditions. There also remains the possibility that
field tests results will be utilized in cases where other direct or cir-
cumstantial evidence against the defendant is relatively weak. In the-
se cases, the jury may rely largely on the field test results to convict a
defendant off of potentially unreliable results. Where there is strong-
er corroborating evidence, the potential for an erroneous conviction
would be substantially less. With the current state of the law, a de-
fendant’s fate may well be determined by which court he is to be
prosecuted in. One thing is clear - there must be consistent applica-
tion of the law to preserve the integrity of the justice system.
Vincent J. Costa
*
*
J.D. Candidate 2013, Touro College Jacob D. Fuchsberg Law Center; B.S. summa cum
laude, 2009, Stony Brook University; major in Business Management, Finance specializa-
tion, minor in Technological Systems Management. I would like to thank my mother and
father, Linda and Phil Punturo, for their unwavering love and support as I pursue my child-
hood dreams. I would also like to thank my grandparents, Mary and Isidoro Costa, who
never tired of my relentless desire to learn. Special thanks to Professor Martin Schwartz for
his time and expert guidance, and to my Constitutional Law Editor, Danielle M. Hansen, for
her patience and attention to detail throughout the editing process.
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