PEOPLE v. CALI (1997)

The indictment charges the defendant with two counts of Felony Driving While Intoxicated Sections 1192(2) and (3) as well as Failure to Signal Turn Section 1163(d) all of the Vehicle and Traffic Law.

Defendant moves for a pretrial order suppressing the results of the breathalyzer test administered to him on the ground that, of the four chemicals reflected in the record of the analysis breath analyzer ampoules, one was identified as silver rather than silver nitrate.

The certification relative to the ampoule used in this case specifically states the relevant ampoule lot qualifies “within the specifications of the manufacturer.”

The court has long noted and generally approved of the People's reliance upon authenticity certificates of the government or independent laboratories to show the proper composition of chemical ampoules used in the breathalyzer tests.   People v. Uruburu, 169 A.D.2d 20, 25, 571 N.Y.S.2d 965 (1991) citing People v. Kinne, 71 N.Y.2d 879, 880, 527 N.Y.S.2d 754, 522 N.E.2d 1052, People v. Freeland, 68 N.Y.2d 699, 506 N.Y.S.2d 306, 497 N.E.2d 673, People v. Gower, 42 N.Y.2d 117, 122, 397 N.Y.S.2d 368, 366 N.E.2d 69;  People v. McDonough, 132 A.D.2d 997, 998, 518 N.Y.S.2d 524, lv denied 70 N.Y.2d 801, 522 N.Y.S.2d 119, 516 N.E.2d 1232;  People v. Garneau, 120 A.D.2d 112, 507 N.Y.S.2d 931;  and People v. Meikrantz, 77 Misc.2d 892, 897-901, 351 N.Y.S.2d 549.

What effect the use of the “silver” rather than “silver nitrate” as a catalyst may have on the breathalyzer test result is unclear and is a proper question of fact for trial determination.

I find as a matter of law that where the Record of Analysis Breath Analyzer Ampoules states “Catalyst (Silver)” instead of “Catalyst (Silver Nitrate)” it raises issues going to the weight of the evidence for trial consideration, and not to admissibility of the documents regarding the breathalyzer pursuant to C.P.L.R. § 4518(a), (c).   People v. Seablom, (Rochester City Ct, Geraci, J., 10/31/96):  People v. Ward, (Henrietta Town Ct., Renzi, J., 12/30/96);  People v. Herko, (Fairport Village Ct., Nadler, J., 1/9/97), compare, People v. Iwasiw, 167 Misc.2d 1013, 641 N.Y.S.2d 521 (Penfield Just.Ct., Lomenzo, J., 1996);  People v. Henry, (Webster Town Ct, Barrett, J., 7/16/96);  People v. Jenks, (Ogden Town Ct., Ryan, J., 9/27/96).

Accordingly, the defendant's motion to suppress the results of the breathalyzer test is denied.

This Decision constitutes the Order of the Court.

DAVID D. EGAN, Judge.