People v. Mertz, 68 N.Y.2d 136 (1986)
A breathalyzer test result of .10 or more blood alcohol content (BAC) within two hours of arrest establishes a prima facie case of driving while intoxicated (DWI) under Vehicle and Traffic Law § 1192(2), but the defendant may present evidence to show their BAC was less than .10 at the time of operation.
Summary
Mertz was arrested for DWI after a car accident. Breathalyzer tests, administered at the hospital about two hours after his arrest, showed a BAC of .15 and .16. At trial, Mertz presented expert testimony arguing that his BAC might have been lower at the time of the accident due to alcohol absorption rates. The trial court prevented Mertz’s attorney from arguing this point during summation and gave incorrect jury instructions regarding presumptions related to the breathalyzer test. The New York Court of Appeals reversed the conviction, holding that the defendant must be allowed to present evidence and argue that their BAC was below the legal limit at the time of driving, and the breathalyzer logs were admitted without proper foundation. The court also clarified the presumption related to the breathalyzer test results.
Facts
Shortly before 1:28 a.m. on April 19, 1983, Mertz’s car crashed. Officer Sprague found Mertz behind the wheel, injured and smelling of alcohol. Mertz stated he did not remember what happened. At the hospital, the officer arrested Mertz and called for a breathalyzer technician. Officer Needleman arrived at 2:37 a.m. and, after administering warnings and obtaining consent, conducted two breathalyzer tests at 3:25 a.m. and 3:35 a.m., yielding readings of .15 and .16, respectively. Mertz testified he consumed a bacon cheeseburger and fries around 12:30 a.m. Dr. Zimmerman testified the meal’s fat content would dramatically delay alcohol absorption and Mertz’s BAC could have been rising during the tests, possibly being lower at the time of driving.
Procedural History
Mertz was convicted of violating Vehicle and Traffic Law § 1192(2). The Appellate Term affirmed the conviction. The New York Court of Appeals granted leave to appeal. The Court of Appeals reversed the Appellate Term’s order and ordered a new trial. The court stated that Mertz was improperly denied the opportunity to argue his BAC at the time of operation, the breathalyzer logs were admitted without proper foundation, and the charge regarding Vehicle and Traffic Law § 1194(9) was improper.
Issue(s)
1. Whether a defendant should be allowed to present evidence and argue that their blood alcohol content (BAC) was below .10 at the time of operating a vehicle, despite a breathalyzer reading above .10 within two hours of arrest.
2. Whether breathalyzer logs are admissible as evidence without proper foundation establishing that entries were made contemporaneously with the events recorded.
3. Whether a jury instruction stating that a permit from the Department of Health creates a rebuttable presumption that the breathalyzer examination was properly given is proper.
Holding
1. Yes, because Vehicle and Traffic Law § 1192(2) prohibits operating a vehicle *while* having a BAC of .10 or more, and a later test result is not conclusive evidence of the BAC at the time of operation.
2. No, because CPLR 4518(a) requires foundation evidence showing that the entries were made at the time of the acts recorded or within a reasonable time thereafter.
3. No, because the jury may interpret the instruction as shifting the burden of proof to the defendant to rebut the presumption, which is merely a permissive inference.
Court’s Reasoning
The court reasoned that Vehicle and Traffic Law § 1192(2) prohibits operating a vehicle “while [the operator] has .10 of one per centum or more by weight of alcohol in his blood.” The court emphasized that a breathalyzer reading taken within two hours after arrest is strong, but not conclusive, evidence of the BAC during operation. The court relied on expert testimony that BAC can fluctuate, and to prevent a defendant from introducing evidence suggesting their BAC was below .10 at the time of operation may raise constitutional concerns. To hold otherwise would be rewriting the statute to prohibit driving after ingesting sufficient alcohol to produce a .10 BAC within two hours, rather than driving with a .10 BAC. The court stated, “What the statute proscribes is operation of a motor vehicle ‘while [the operator] has .10 of one per centum or more by weight of alcohol in his blood’