PEOPLE v. TESTA (2000)

Defendant charged in an accusatory instrument with driving while intoxicated moves to suppress the results of a test performed of his breath on a breath testing device known as the Datamaster or in the alternative requests a Frye hearing to determine the scientific reliability of that instrument.

Although the Fourth Department has yet to rule on this issue, the Third Department in People v. Hampe, 181 A.D.2d 238, 585 N.Y.S.2d 861, lv. denied 80 N.Y.2d 930, 589 N.Y.S.2d 857, 603 N.E.2d 962, ruled that it was not error to admit the results of a BAC Verifier breath testing device absent testimony of an expert establishing the accuracy and reliability of the instrument, holding that the general acceptance of the device was established by its inclusion on the list of instruments approved by the New York State Department of Health and as such no hearing was required.

 While the device utilized in this case is the Datamaster and not the BAC Verifier, this Court discerns no difference between the two instruments mandating a different result since the Datamaster is also included on the list of breath testing devices that have been approved by the New York State Department of Health.   See 10 NYCRR 59.4[b]; see also People v. Holmes, 171 Misc.2d 962, 656 N.Y.S.2d 130 (1997).   Moreover, absent a Fourth Department or a Court of Appeals decision to the contrary, the doctrine of stare decisis requires this Court to follow the Third Department in Hampe (supra).   See Mountain View Coach Lines v. Storms, 102 A.D.2d 663, 476 N.Y.S.2d 918 (1984).

 Accordingly, the results of the Datamaster shall be admissible at trial without expert testimony establishing its reliability.   However, the People still must prove that the instrument was working properly at the time of defendant's test and that the test was properly administered.

MICHAEL F. McKEON, J.