People State New York v. Francisco Alvarez

[70 N.Y.2d 375 Page 377] Opinion OF THE COURT Defendants in these cases were arrested for drunk driving offenses in separate and unrelated incidents.
In each case the police took a single breath sample using a Smith & Wesson Model 900A Breathalyzer machine, and the test
indicated a blood alcohol content in excess of the legal limit (see, Vehicle and Traffic Law § 1192 [1], [2]; § 1195 [2]).
Defendants then moved to suppress the breathalyzer test results arguing, as they do in this court, that because the administration
of the tests necessarily destroyed the breath samples, the Due Process Clause of the State Constitution (NY Const, art I,
§ 6) required that the police take and preserve a second sample for later use by defendants.