No six-month breathalyzer calibration requirement

People v. Todd, 38 N.Y.2d 755 (1975), does not impose a bright-line timing rule for calibration of breath-alcohol detection devices.

In People v. Boscic (Ct. App. 11/17/2010), the People appealed a ruling from the County Court where the results of a breath-alcohol detection test were suppressed on the ground that the breath-alcohol detection device had not been calibrated within the six months prior to the test.  The device had been calibrated six months and three weeks prior to use, but the County Court interpreted Todd as setting forth a bright line rule that breath-alcohol detection devices must be calibrated at least every six months.

The Court of Appeals unanimously held that Todd did not set forth a bright line six-month calibration rule.  The court discussed the evolution of breath-alcohol detection devices from the Todd era, 1975, to the modern device used to test the defendant.  The discussion highlighted the improved reliability of the devices.  Additionally, the court noted that regulations have been promulgated by the New York State Department of Health to govern the calibration of these instruments.  The applicable regulation requires annual device calibration unless more frequent calibration is recommended by the device manufacturer.  See 10 N.Y.C.R.R § 59.4(c).  Although the regulation was not in effect at the time the defendant was tested, the court reasoned that the regulation provided guidance for the determination of calibration interval.

In reversing the County Court, the Court of Appeals clarified the admissibility standard for alcohol-breath detection device results.  The court held that the appropriate interpretation of Todd, and thus the appropriate standard for admissibility, was that the People had to demonstrate that the device “was in proper working order at the time it issued the test results in question.” Thus, the court declined the opportunity to set a bright-line rule to determine whether the device was in "proper working order."  (MM/LC)

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