But no effort was made to hand to the police officer, who was present in court, the bottle the chemist had used to see if he could identify it as the bottle he had labeled and initialed. There is missing a necessary link in the chain of identification.'" People v. Sansalone (1955), 208 Misc. 491, 493 ( 146 N.Y.S.2d 359, 361), relied upon in People v. Pfendler (1961), 29 Misc.2d 339 ( 212 N.Y.S.2d 927). The appellate court of Illinois effectively stated the well-founded additional requirement that the unchanged condition of the specimen be established:
However, as a general rule, inconsistent notations on the wrappers used to transmit evidence should be considered irregularities bearing only on the weight of the evidence when as here the defendants' names or some other indicator invariably appears throughout. On the other hand, the fact that the item was or might have been accessible to other persons not called as witnesses casts suspicion on the integrity of the evidence often rendering it inadmissible especially when it appears that the evidence was available to unknown persons over an extended period (see People v. Pfendler, 29 Misc.2d 339; cf. People v. Kinney, supra; People v. Nicoletti, 34 N.Y.2d 249). Although the prosecutor would have been well advised to cover this point during presentation to the Grand Jury, it is obviously an issue which is best resolved during a full voir dire at trial. In any event, in the record now before us there is no apparent gap, and nothing to suggest access or tampering or that the evidence was not maintained in accordance with reasonable police procedures.
We think this was reversible error. In the absence of a showing by means of a chemical test that there was, within two hours of defendant's arrest, ten-hundredths of one per centum or more by weight of alcohol in his blood, he could not be convicted of driving while his ability was impaired (Vehicle and Traffic Law, § 1192, subd. 1; Matter of Bowers v. Hults, 42 Misc.2d 845, 847-848; People v. Ashby, 31 Misc.2d 707, 708; People v. Pfendler, 29 Misc.2d 339, 341; People v. Wagonseller, 25 Misc.2d 217). The trial court also instructed the jury that the unsafe condition of the tires on the automobile driven by defendant could be considered as part of his alleged recklessness or culpable negligence if they found that the condition of the tires was one of the producing causes of the accident. Defense counsel requested the court to instruct the jury that "defendant cannot be charged with the knowledge of bald tires unless the jury is satisfied that defendant knew beyond a reasonable doubt of these tires."
(Cf. People v. Pfendler, 29 Misc.2d 339; People v. Nicoletti, 34 N.Y.2d 249, supra.)
Where the basis for a conviction of driving while intoxicated is the alcoholic content of a blood specimen, it is essential to show the chain of possession of the blood sample and the unchanged condition of the container from the time it is taken from a defendant until it is delivered to the chemist. ( People v. Pfendler, 29 Misc.2d 339.) Blood specimens to be used as evidence in trials should be handled with the greatest of care and all persons who handle the specimen should be ready to identify it and testify to its custody and unchanged condition ( People v. Sansalone, 208 Misc. 491). The same requirements which are placed upon the People when such evidence is sought to be used, should inure to the defense when a reanalysis is sought to be introduced. There is no question that a defendant upon request is entitled to the results of a chemical blood test.
There was no evidence to establish that the blood received in Albany was the same blood which was withdrawn nor was there any testimony to indicate that the condition of the blood was unchanged between the time it was withdrawn and the time it was tested. ( People v. Pfendler, 29 Misc.2d 339; People v. Goedkoop, 26 Misc.2d 785. ) In charging the jury, the trial court stated that the presumption as to percentages of alcohol in the blood set forth in subdivision 3 of section 1192 Veh. Traf. of the Vehicle and Traffic Law were "conclusive". These, of course, are mere presumptions and are not conclusive. ( People v. Hellwig, 22 Misc.2d 286.)