People State New York v. Edward Mertz

[68 N.Y.2d 136 Page 139] Opinion OF THE COURT A violation of Vehicle and Traffic Law § 1192 (2) is not established unless the trier of fact finds that while operating a motor vehicle defendant had a blood alcohol content (BAC) of .10 of 1% or more. Evidence that a breathalyzer test administered within two hours of arrest showed defendant to have such a BAC is sufficient to establish prima facie a violation of the subdivision. It is, however, error not to permit defendant's attorney to argue on the basis of evidence, whether through cross-examination of the People's witnesses or testimony of defendant's witnesses, expert or other, from which it could be found that defendant's BAC at the time of vehicle operation was less than .10%, that if the jury so found defendant was not guilty of violating the subdivision. It is error also to charge that evidence that the individual administering the test possesses a permit from the Department of Health creates a rebuttable presumption that the breathalyzer examination was properly given, and to receive in evidence the logs for the breathalyzer, simulator and ampoule on the basis of foundation testimony which did not establish that it was the regular course of business to make the records contained in those logs at the time of the tests recorded in them or within a reasonable time thereafter (CPLR 4518 [a]). For all of those reasons, the order of the Appellate Term should be reversed and a new trial ordered.