Opinion
2013 NA 021489
04-15-2015
The People of the State of New York, v. Jonathan Flores, Defendant.
Madeline Singas, Acting District Attorney Kent V. Moston, Esq., Legal Aid Society
Madeline Singas, Acting District Attorney
Kent V. Moston, Esq., Legal Aid Society
Eric Bjorneby, J.
Defendant is charged with violations of Vehicle and Traffic Law §1192(2) (Driving While Intoxicated Per Se) and §1192(3) (Driving While Intoxicated),as well as related VTL charges, in that on September 19, 2013, at 04:05 AM, in the vicinity of Fulton Street and Clinton Avenue in Hempstead, he operated a motor vehicle while intoxicated by alcohol as revealed by a BAC result of 0.13%. After an investigation and arrest at the scene, defendant was transported to Central Testing (CTS) where he arrived at 5:08 AM. The assigned breath technician, Peter Martino, began his observation of the defendant pursuant to established protocols at 5:38 AM. At 5:49 Officer Martino escorted the defendant to the bathroom at defendant's request, and they returned to the observation area 1 to 2 minutes later. At 5:58 AM defendant consented to take a breath test and he was subsequently escorted to the test room by Officer Martino who began a diagnostic run of the instrument, the Intoxilyzer 5000en at 6:02 AM. The test was conducted at 6:03 AM and yielded a BAC result of 0.13%. On February 5, 2014 Officer Martino lost a battle with cancer and died.
At a pre-trial conference the Court suggested that the parties look into whether or not the breath test results could be admitted or not without live testimony from Officer Martino. The question in the Court's mind initially was whether admission of the breath test results, as reflected on the breath card mechanically produced by the testing instrument, was barred by the US Supreme Court's confrontation decision in Crawford and its progeny. After receiving written submissions from both sides it became apparent that more specific information regarding the operation and capabilities of the Intoxilyzer 5000en was necessary before that question could be answered, and the court conducted a hearing in the nature of a motion in limine to resolve the issue. At the outset of the hearing, the goal was to determine whether or not the People could present adequate testimony pursuant to People v. Hao Lin , 46 Misc 3d 20 to permit substitute testimony for the admission of Officer Martino's certified test results. As the hearing progressed the testimony presented began to focus on the degree to which the test results depended upon the skill, judgment, and accuracy of Officer Martino's human input as opposed to representing raw data. At this point, some understanding of the Supreme Court's decisions in Crawford v. Washington , 541 U.S. 36 (2004), Melendez-Diaz v. Massachusetts , 557 U.S. 305 (2008) and Bullcoming v. New Mexico , 131 S. Ct. 2705 (2011) and there progeny is necessary.
In Crawford, the court addressed the admissibility of defendant's wife's out-of-court statement to police regarding the circumstances under which the defendant stabbed another man in a dispute involving the victim's alleged attempt to rape the defendant's wife. After tracing the history of the right to confrontation regarding ones accusers in a criminal case, the Court held that where the evidence is "testimonial" in nature, the confrontation clause requires that the accuser testify in person unless the declarant is unavailable and the defendant has had a prior opportunity to cross-examine him. Evidentiary rules regarding court created exceptions for statements which are perceived by trial courts to be reliable due to the circumstances under which they were made would no longer excuse a denial of the right to confrontation in a criminal case.
In Melendez-Diaz v. Massachusetts, the Supreme Court held that the admission of certificates regarding the results of the laboratory analysis of some drugs, which verified their identity as cocaine and their quantity and were created to serve as evidence at trial, without the testimony of the analyst who conducted those tests, violated the confrontation clause of the US constitution as they constituted "testimonial" evidence.
In Bullcoming v. New Mexico, defendant was arrested for driving while intoxicated and a sample of his blood was taken pursuant to a warrant and analyzed by a state laboratory forensic analyst. At trial it was revealed that the analyst had been placed on unpaid leave for undisclosed reasons. His report was admitted as a business record and another analyst, familiar with testing device and laboratory procedures, was called to testify. In this case, the Court observed that the analyst's certification reported more than a mere number from a testing device but that the blood sample was received in tact, with the seal unbroken, and that a precise protocol was followed in its testing. The Court noted that "these representations, relating to past events and human actions not revealed in raw, machine-produced data, are meet (sic) for cross-examination." The Court found it significant that no reason for the analysts' replacement was offered, leaving open the possibility that those reasons may have involved issues of competence, reliability or honesty. It also noted that the operation of the instrument used, a gas chromatograph, required specialized knowledge and training and that human error can occur at each stage of the test process which would not be reflected in raw data. The Court held that the confrontation clause is not satisfied by calling one witness to be cross-examined about another witness' statements. Interestingly however, Justice Sotomayor, in a concurring opinion discussing specific issues not decided in that case, noted that the trial court admitted into evidence more than the mere raw data from the testing instrument but other facts as well, including the state of the evidence when received and the procedures used to test it. In addition, and very significantly, the Justice noted that in that case, the state did not allege that the testifying witness could offer his own independent opinion concerning the defendant's blood alcohol content based upon the raw data produced by the gas chromatograph.
Finally, in People v. Hao Lin , 46 Misc 3d 20, an Appellate Term of the Second Department reversed a conviction based upon testimony of a "surrogate" witness who was not the original technician who administered the test, because the substitute witness, who observed most of the test, did not observe the instrument reading of the temperature of the simulator solution and there was no evidence that the machine would shut itself down or otherwise abort the test if the temperature was outside the required range, which would lead to an inaccurate reading. This was a significant void in the proof because if the simulator temperature is outside the acceptable range it will skew the results. As will be discussed below, that question was resolved at the hearing in this matter by the testimony of retired officer Brigandi who testified that the instrument does in fact abort the test where the temperature is not in the required range and, additionally, that in any event he personally examined the instrument in question here and found the simulator solution was in fact maintained at the proper temperature. Regarding confrontation, it is also important to note that the Hao Lin Court observed:
While testimony regarding the procedures of the test itself must be provided by one with expertise and knowledge to satisfy a Confrontation Clause challenge, the procedures of the test itself, in this case as set forth in a 13-step "operational checklist," such as providing information in relation to the identity of the person being tested and the time and location of the test and to other matters unrelated to ensuring the integrity of the test itself, pressing buttons when prompted, and instructing the testee to produce a breath sample, require little expertise or knowledge unique to the tester, given that the instrument self-calibrates, shuts down if the calibration fails, and will not perform the test if a testable sample is not provided.
It appears that if the Court were satisfied that the instrument was functioning properly, including the solution simulator, the test results would have been admitted, even absent the technician who actually administered the test.
To allow for proper comparison of the facts in this case with established case law, it should be noted that the certification at the bottom of the breath card produced by the instrument and signed by Officer Martino in this case states:
I, Peter Martino a member of the Nassau County Police Department do hereby certify and authenticate pursuant to 4539 and 4518 of the C.P.L.R. that this is a photocopy of the original record and that this record was made in the regular course of business, and that it was the regular course of business to make such record at the time of event recorded and I am an employee designated for that purpose pursuant to C.P.L.R. 4518.
The "record" involved in this case is not a report or a summary of the findings of Officer Martino, or any document prepared by Officer Martino, but rather it is merely the breath card, the raw data mechanically produced by the instrument.
Nassau County Police use a 12 step operational checklist. They are:
1.Turn on intoxilyzer and simulator/already on.
2.Subject under observation for 20 minutes/did not eat, drink, smoke, vomit or regurgitate.
3.Observe display/push button to start test/verify time and date.
4.Push green button/Insert test card/enter information re date, subject ID, etc.
5.Observe display: Air Blank
6.Check simulator temperature ______Degrees C.
7.Observe display Cal Check
8.Observe display Air Blank
9.Observe display Please Blow/Listen for tone to stop
10.Secure breath sample
11.Observe display Air Blank
12.Test complete. Automatically prints Test Record
FINDINGS OF FACT
Police officer Cardone, the arresting officer, testified that he observed the defendant during the same period that officer Martino did and that the defendant did not eat, drink, put anything in his mouth or regurgitate during that time.
The hearing testimony of retired officer Brigandi, the former supervisor of Nassau County's Central Testing Unit, clearly established that the instrument used in this case to test the defendant's breath was the Intoxilyzer 5000en. The instrument fully re-calibrates itself and will either abort or produce an error message if any of its parts are not functioning properly or an insufficient breath sample is obtained. Most importantly, the question unanswered by the record in Hao Lin, namely whether the instrument would, if the simulator temperature was out of the accepted range, abort the test, was answered in the affirmative. This instrument measures the simulator solution temperature in question and will not complete the test if the temperature is out of the acceptable range. In addition, it was clearly established that the temperature was in the proper range during this test for another reason as well. The instrument will re-calibrate itself but it will not repair itself. Officer Brigandi examined this very instrument a few hours after the test in this case and found the simulator temperature was properly maintained. If it was proper when examined it was proper during the test because the instrument does not repair itself.
In addition to the internal check of the simulator solution, the instrument automatically purges the instrument and performs checks to rule out any interference from ambient air prior to the test. Each of the above "check" and "observe" steps is electronically monitored and a test will not be completed if the instrument is not functioning properly. The instrument is also programed with a slope detector designed to detect mouth alcohol and rule out a skewed result produced by mouth alcohol which has a distinct profile. In a normal profile, the reading climbs as breath from the lungs reaches the instrument and levels off, yielding a proper reading. When mouth alcohol is present, the reading begins high and then decreases as the mouth alcohol is expelled. Sometimes, however, the instrument is fooled when the rise and fall meet. While the program is not foolproof, any expert can testify as to this fallibility issue which can arise from a failure to do a proper observation period. This is so because when the instrument's slope detector, designed to detect mouth alcohol is "fooled," a normal test result is provided by the instrument and the technician administering the test would observe no error on the breath card..
The testimony further established that there is absolutely no human evaluation or judgment involved in the administration of test itself. Unlike the blood analysis in Bullcoming, the entire process, from turning the instrument on, to the defendant breathing into the instrument, to receiving a breath card with a result, is fully automated. No independent judgment, observation, or interpretation of the results by the technician who conducts the test is involved. Accordingly, the technician, at least in this county, prepares no report regarding his conclusions as to the BAC level of the defendant's breath. He simply certifies that the card provided to the Court is an accurate copy of the card produced by the instrument. For this reason the people take the position that they are seeking to introduce into evidence only the raw data reflected on the breath card from which a testifying expert can render his own opinion regarding defendant's BAC level at the time of the test.
Another issue raised at the hearing which the defense claims should bar admission of the test results is the requirement of an observation period prior to the administration of the test itself. At the outset, the Court notes that while certainly relevant to the mouth alcohol issue and the fallibility of the slope detector, the absence of a proper observation period is not fatal to the admission of the test results but goes only to the weight to be accorded the test result by the trier of the facts. ( People v. Charlie Brown , 44 Misc 3d 127(A), App. Term 2nd Dept. 2014; People v. Lent , 29 Misc 3d 14, App. Term 2nd Dept. 2010; People v. Schuessler , 14 Misc 3d 30, App. Term 2nd Dept 2006)
Secondly, testimony was offered by the arresting officer regarding his observation of the defendant for the required 20 minutes prior to the test. Evaluation of that testimony is an issue of fact for the jury. 10 NYCRR 59.5 (b) provides:
The subject shall be observed for at least 15 minutes prior to the collection of the breath sample, during which period the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked, or have placed anything in his/her mouth; if the subject should regurgitate, vomit, smoke or place anything in his/her mouth, an additional 15-minute waiting period shall be required.
Nothing in the statute or the regulations specifically provides that the technician be the one to do the observation.
Thirdly, the expert testimony here strongly suggests that mouth alcohol in this case is a non-issue. The defense alleges that defendant went to the bathroom at 05:49 AM and that he may have regurgitated at that time, though nothing in Officer Martino's papers supports that claim. Defendant was stopped at 04:05. If he did regurgitate at 05:49, there would have been little if any alcohol left in his stomach because, according to Officer Brigandi, alcohol is fully absorbed from the stomach into the bloodstream within two hours of ingestion. More importantly, his testimony indicates that it is a scientifically accepted fact that mouth alcohol is, in any event, dissipated from the mouth in 4 to 7 minutes. This defendant was tested some 14 minutes after his bathroom visit.
THE LAW
"Breath test results are admissible where the People "establish that the machine is accurate, that it was working properly when the test was performed and that the test was properly administered" (People v Campbell, 73 NY2d 481, 484 [1989]; see People v Boscic, 15 NY3d 494, 497 [2010]; People v Mertz, 68 NY2d 136, 148 [1986]; cf. People v Baker, 51 AD3d 1047, 1049 [2008]; People v Grune, 12 AD3d 944, 945 [2004], lv denied 4 NY3d 831 [2005])." ( People v. Murphy , 101 AD3d 1177) In this matter, evidence was presented to satisfy this court that the instrument self calibrated and was accurate and working properly, as evidenced by the breath card, produced without asterisk or error message, and that therefore the test was properly administered. The evidence also establishes that there was a proper a period of observation prior to the test. Not one of the 12 steps followed by the technician actually involves the use of any judgment or evaluation. He presses a button to start the machine. He observes various displays as the instrument goes through its self-calibration tests, (the failure of anyone halting the test), he directs the defendant to blow into the instrument, and a measurement result is printed out.
While the issue of "surrogate testimony" remains somewhat up in the air, (compare Raucci and Hao Lin below) there is a line of cases which stand for the proposition that where raw data is produced by an instrument operated by a technician who is no longer available for cross examination, another expert can review that raw data and testify as to his own opinion based on that raw data, without running afoul of Crawford and the confrontation clause. ( People v. Raucci , 109 AD3d 109, 3rd Dept. 2013; People v. Rios , 102 AD3d 473, 1st Dept. 2013; People v. Vargas , 99 AD3d 481, 1st dept. 2012)
In the Raucci case, the First Department drew a distinction where one analyst testifies to the conclusions of a non-testifying analyst, citing Bullcoming, and one where an expert analyst testifies to his own conclusions from raw data gathered by another analyst. The Raucci court held:
Here, however, no surrogate testimony was adduced at defendant's trial and, therefore, no Crawford violation occurred. Although the analyst in question indeed based his opinion upon raw data that was generated—in part—by another chemist in the same lab, a review of the record makes clear that, among other things, the testifying analyst drew his own scientific conclusions from such data; those conclusions, in turn, were embodied in the expert report that the testifying analyst authored. Additionally, even assuming that the raw data qualifies as testimonial evidence within the meaning of Crawford—an issue we need not address—neither the data itself nor any conclusions reached or opinions held by the nontestifying analyst were entered into evidence at trial, and the analyst who did opine as to the composition of the substances at issue testified and was subject to cross-examination (see People v Brown, 13 NY3d at 340). Under these circumstances, defendant's right of confrontation was not violated simply because the People's expert "made reference to data gathered by [a] nontestifying [analyst]" (People v Vargas, 99 AD3d 481, 481 [2012]; see People v Rios, 102 AD3d at 475; compare Bullcoming v New Mexico, 564 US at — - —, 131 S Ct at 2713-2714; Melendez-Diaz v Massachusetts, 557 US at 309-311).
The Rios Court came to a similar conclusion holding:
As an alternative holding, we reject defendant's Confrontation Clause claim on the merits. A fair reading of the analyst's testimony establishes that she made her own independent comparison between defendant's DNA profile and the DNA recovered from semen stains on the victim's underwear. The record does not support defendant's assertion that the witness merely reported on or agreed with a comparison made by others in her office. Thus, the witness did not merely provide surrogate testimony that failed to satisfy the Confrontation Clause (compare Bullcoming v New Mexico, 564 US —, —, 131 S Ct 2705, 2709-2710 [2011]).
Furthermore, in People v Brown (13 NY3d 332, 340 [2009]), the Court of Appeals found a similar DNA report to be nontestimonial for Confrontation Clause purposes, and we find no basis to distinguish the reports in this case. In addition, as noted, the reports of the nontestifying analysts never reached the jury. The witness testified about the other analysts's tests only to explain the basis for her own opinion, which was the only statement offered for the truth of the matter asserted (see Williams v Illinois, 567 US —, —, 132 S Ct 2221, 2228 [2012]; People v Vargas, 99 AD3d 481 [1st Dept 2012]).
Finally, the First Department in the Vargas case held clearly and concisely that:
Defendant's right of confrontation was not violated by testimony by the People's expert DNA analyst that made reference to data gathered by nontestifying technicians (see People v Brown, 13 NY3d 332 [2009]). Williams v Illinois (567 US —, —, 132 S Ct 2221, 2242-2244 [2012]) provides further support for the proposition that the DNA evidence in this case did not violate the Confrontation Clause.
In this Court's view, the California Supreme Court got it right in People v. Lopez , 286 P.3d 469, a case remarkably on point with the instant matter, when it held:
Not yet considered by the United States Supreme Court is whether the prosecution's use at trial of a machine printout violates a defendant's right to confront and cross-examine the machine's operator when, as here, the printout contains no statement from the operator attesting to the validity of the data shown. We agree with those federal appellate courts that have upheld the use of such printouts. (See U.S. v. Moon (7th Cir.2008) 512 F.3d 359, 362 ["the instruments' readouts are not statements,' so it does not matter whether they are testimonial' "]; U.S. v. Washington (4th Cir.2007) 498 F.3d 225, 231 ["the raw data generated by the machines do not constitute statements,' and the machines are not declarants' "]; see also Bullcoming, supra, 564 U.S. at p. ————, 131 S.Ct. at p. 2722 (conc. opn. of Sotomayor, J.) [the prosecution's introduction only of "machine-generated results, such as a printout from a gas chromatograph," may not violate the defendant's confrontation right].) Because, unlike a person, a machine cannot be cross-examined, here the prosecution's introduction into evidence of the machine-generated printouts shown in pages two through six of nontestifying analyst Peña's laboratory report did not implicate the Sixth Amendment's right to confrontation.
In so holding, the California Supreme Court followed the holding in U.S. v. Moon ,512 F.3d 359 (2012), cert den. 555 US 812 where the circuit court held:
DeFrancesco reached on the stand the same conclusion that appeared in Olson's report. Defendants do not say that Olson's evaluation could have played any role in the jury's deliberation. Instead they are concerned about the readings taken from the instruments, because those readings are the problem for the defense. Any competent chemist would infer from these data that the tested substance was cocaine. Yet the instruments' readouts are not "statements", so it does not matter whether they are "testimonial." That's the holding of United States v. Washington, 498 F.3d 225 (4th Cir.2007).
In turn, the circuit court in Moon followed it earlier precedent in United States v. Washington , 498 F.3d 225(2007) cert den. 557 US 934 wherein the court held:
In the case before us, the "statements" in question are alleged to be the assertions that Washington's blood sample contained PCP and alcohol. But those statements were never made by the technicians who tested the blood. The most the technicians could have said was that the printed data from their chromatograph*230 machines showed that the blood contained PCP and alcohol. The machine printout is the only source of the statement, and no person viewed a blood sample and concluded that it contained PCP and alcohol. Yet, the very same data that would have permitted the lab technicians to say that the blood contained PCP and alcohol were also seen and interpreted by Dr. Levine. Moreover, those data were the only basis upon which Dr. Levine stated in court that the blood sample contained PCP and alcohol. In short, the inculpating "statement"-that Washington's blood sample contained PCP and alcohol-was made by the machine on printed sheets, which were given to Dr. Levine. The technicians could neither have affirmed or denied independently that the blood contained PCP and alcohol because all the technicians could do was to refer to the raw data printed out by the machine. Thus, the statements to which Dr. Levine testified in court-the blood sample contained PCP and alcohol-did not come from the out-of-court technicians, and so there was no violation of the Confrontation Clause.
Moreover, there would be no value in cross-examining the lab technicians on their out-of-court statements about whether the blood sample tested positive for PCP and alcohol because they made no such statements. They would only be able to refer to the machine's printouts, which Dr. Levine also had. The value of cross-examination might relate to authentication or to a description of the machines or to the chain of custody, but none of these were issues at trial, nor are they issues on appeal. Whether the machines properly reported PCP or alcohol is determined by the raw data that the machines generated, and its truth is dependent solely on the machine.
Thus, we reject the characterization of the raw data generated by the lab's machines as statements of the lab technicians who operated the machines. The raw data generated by the diagnostic machines are the "statements" of the machines themselves, not their operators. But "statements" made by machines are not out-of-court statements made by declarants that are subject to the Confrontation Clause.
More recently, the California circuit court dealt with this precise issue in U.S. v. Maxwell , 724 F.3d 724, (2013) Cert den. 134 S. Ct 2660 where the court held:
The Sixth Amendment's Confrontation Clause provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." We have had several occasions in recent years to evaluate potential Confrontation Clause problems that arise when an expert witness from a crime lab testifies about the results of forensic testing performed by another analyst. See United
States v. Turner, 709 F.3d 1187, 1190 (7th Cir.2013); Garvey, 688 F.3d at 884—85; Moon, 512 F.3d at 361. We already know that the government may not introduce forensic laboratory reports or affidavits reporting the results of forensic tests and use them as substantive evidence against a defendant unless the analyst who prepared or certified the report is offered as a live witness subject to cross-examination. See Bullcoming v. New Mexico, ——— U.S. ————, 131 S.Ct. 2705, 2710, 180 L.Ed.2d 610 (2011); Melendez—Diaz, 557 U.S. at 329, 129 S.Ct. 2527. But, as we have explained before, "an expert who gives testimony about the nature of a suspected controlled substance may rely on information gathered and produced by an analyst who does not himself testify," Turner, 709 F.3d at 1190, as "the facts or data" on which the expert bases her opinion "need not be admissible in evidence in order for the [expert's] opinion or inference to be admitted." Moon, 512 F.3d at 361 (citing Fed.R.Evid. 703). And this makes sense because the raw data *727 from a lab test are not "statements" in any way that violates the Confrontation Clause. Id. at 362.
What makes this case different (and relatively more straightforward) from those we have dealt with in the past is that Gee did not read from Nied's report while testifying (as in Garvey ), she did not vouch for whether Nied followed standard testing procedures or state that she reached the same conclusion as Nied about the nature of the substance (as in Turner ), and the government did not introduce Nied's report itself or any readings taken from the instruments he used (as in Moon ). Maxwell argues that Nied's forensic analysis is testimonial, but Gee never said she relied on Nied's report or his interpretation of the data in reaching her own conclusion. Instead, Gee simply testified (1) about how evidence in the crime lab is typically tested when determining whether it contains a controlled substance, (2) that she had reviewed the data generated for the material in this case, and (3) that she reached an independent conclusion that the substance contained cocaine base after reviewing that data.
Two recent Second Department decisions also support this view that an expert witness may testify as to his opinion by reviewing raw data compiled by a non-testifying technician without offending a defendant's confrontation rights under Crawford. ( People v. Gonzalez , 120 AD3d 832 [2014]; People v. Cartagena , 126 AD3d 913 [2015])
As noted by the Court in Cartagena:
Here, in addition to the erroneously admitted report, the People presented evidence directly linking the defendant to the burglary. Specifically, the nontestifying analyst's supervisor testified that she herself analyzed the raw data from the evidence collected at the crime scene and the DNA collected from the defendant and drew her own conclusions. Thus, the erroneously *2 admitted report was cumulative, as the expert who did testify reached that same conclusion after comparing the same raw data relied upon by the nontestifying analyst. Since there was no reasonable possibility that the erroneously admitted report contributed to the defendant's conviction, the error was harmless beyond a reasonable doubt (see People v Rawlins, 10 NY3d at 157; People v Gonzalez, 120 AD3d at 833; People v Hortiz, 60 AD3d 692, 693).
CONCLUSION
For the foregoing reasons, the Court holds that Police Officer Cardone may testify regarding his pre-test observation of the defendant. The Court further holds that the breath card may be introduced into evidence through officer Brigandi who may testify regarding the instrument in question, the Intoxilyzer 5000en, its theory, functioning, and safeguards, as well as anything regarding the administration of the test which he can infer from the breath card such as a proper purging of the instrument, checking for ambient contaminants, etc. He may also testify, based upon the raw data contained in the breath card, as to his own opinion regarding the defendant's BAC level at the time he was tested. He may not, of course, testify as to any opinion officer Martino may have come to.
The foregoing constitutes the decision and order of the Court.
__________________________
ERIC BJORNEBY
J.D.C.
Dated:Hempstead, New York
April 15, 2015
Madeline Singas, Acting District Attorney
Kent V. Moston, Esq., Legal Aid Society