People v. Yocher

197 A.D.2d 890, 602 N.Y.S.2d 290, 1993 N.Y. App. Div. LEXIS 9314

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 1, 1993
• Status: Published

Opinion

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a conviction of felony driving while intoxicated, contending that the trial court erred in admitting the results of a breathalyzer test. Specifically, defendant asserts that, because the certificate of ampoule analysis was dated nearly three years prior to the breathalyzer test, the People failed to establish that the ampoules used "had been tested within a reasonable period in relation to defendant’s test” (People v Mertz, 68 NY2d 136, 148), and thus that the People failed to proffer sufficient foundational proof for admission of the breathalyzer test results. We conclude that, in the absence of proof that the ampoules have a limited shelf life or that the chemical composition of the ampoule solution changes materially as a result of the passage of time, the certificate of ampoule analysis satisfied the People’s burden of establishing that the ampoule solution was "of the proper kind and mixed in the proper proportions” (People v Freeland, 68 NY2d 699, 700; see, People v Mertz, supra, at 148). (Appeal from Judgment of Monroe County Court, Connell, J.—Felony Driving While Intoxicated.) Present—Callahan, J. P., Balio, Lawton, Boomer and Boehm, JJ.