DECISION BACKGROUND On January 7, 2022, defendant Jordan Hernandez was arraigned on charges related to operating a motor vehicle while under the influence of alcohol and drug (Vehicle and Traffic Law ["VTL"] §1192 [3] and [1]), and reckless driving (VTL §1212). The portable breath test (“PBT”) result of defendant’s breath taken at the hospital was a blood alcohol content (“BAC”) of .078. On September 15, 2023, a motion in limine was made regarding the use of the results of the portable breath test by the People’s expert for a “retrograde extrapolation” analysis, to show defendant’s blood alcohol level at the time of an automobile accident.1 The issue is whether the People’s expert should be allowed to use the entire PBT result of .078 as the raw data for a retrograde extrapolation analysis or if the expert should be limited, as the defense argues, to using only two digits after the decimal place, to wit, .07, as per Title 10 of the New York Codes, Rules and Regulations §59.5 (e) (“10 NYCRR §59.5 [e]“). The regulation at issue — 10 NYCRR §59.5 — is titled “Breath analysis; techniques and methods” and provides as follows: The following breath analysis techniques and methods shall be a component of breath analysis instrument operator training provided by training agencies and shall be used by operators performing breath analysis for evidentiary purposes: (a) A breath sample shall be collected at the direction and to the satisfaction of a police officer and shall be analyzed with breath analysis instruments meeting the criteria set forth in section 59.4 of this Part. (b) The subject shall be observed for at least 15 minutes prior to the collection of the breath sample, during which period the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked, or have placed anything in his/her mouth; if the subject should regurgitate, vomit, smoke or place anything in his/her mouth, an additional 15-minute waiting period shall be required. (c) A system purge shall precede both the testing of each subject and the analysis of the reference standard. (d) The result of an analysis of a reference standard with an alcoholic content greater than or equal to 0.08 percent must agree with the reference standard value within the limits of plus or minus 0.01 percent weight per volume, or such limits as set by the commissioner. An analysis of the reference standard shall precede or follow the analysis of the breath of the subject in accordance with the test sequence established by the training agency. Readings for the reference standard, a blank and the subject’s breath, shall be recorded. (e) Results of an analysis of breath for alcohol shall be expressed in terms of percent weight per volume, to the second decimal place as found; for example, 0.237 percent found shall be reported as 0.23 percent. The People argue that in this case, the “results”, as referred to in section (e) of the regulation, will be the value the expert will testify about after a retrograde extrapolation analysis and agree that the expert’s conclusion and testimony will be limited to two digits after the decimal place. They argue that the two decimal place restriction provided in section (e) should not apply to the raw data used by the expert to form the analysis. The People further argue that allowing the expert to use the complete numerical value, including the digit in the third decimal place, will provide a more precise and accurate retrograde extrapolation analysis result. After a suppression hearing in this matter, the court (Hon. Jeffrey Zimmerman) issued a lengthy decision (dated February 7, 2023) ruling that the result of the PBT is admissible at trial. In the decision, the result of the PBT is reported to be “.07 BAC” and in a footnote, the court acknowledged that the People will use this result for a retrograde extrapolation analysis to show that the defendant’s blood alcohol content was higher at the time of the accident. Discussion Vehicle and Traffic Law (“VTL”) §1194 contains the procedures for arrest and testing where a defendant is charged with violating VTL §1192. VTL §1194 (4)(c) provides the Department of Health with the obligation to establish “rules and regulations approving satisfactory techniques or methods of conducting chemical analyses of a person’s blood, urine, breath or saliva.” Such rules and regulations issued by the Department of Health can be found in 10 NYCRR Part 59. 10 NYCRR §59.5 (e) expressly provides that the “[r]esults of an analysis of breath for alcohol shall be expressed in terms of percent weight per volume, to the second decimal place found; for example, 0.237 percent found shall be reported as 0.23 percent (emphasis supplied).” A court in interpreting a statute or regulation should attempt to effectuate the intent of the legislature or enacting agency (see Patrolmen’s Benevolent Assn of the City of New York v. City of New York, 41 NY2d 205, 208 [1976]; Smith v. Donovan, 61 AD3d 505, 508 [1st Dept 2009]). The clearest indicator of intent is the text itself and therefore, the starting point in any case of interpretation must always be giving effect to the plain meaning of the statute or regulation (see Majewski v. Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]). Where the language of the statute or regulation is clear and unambiguous, the court must construe it to give effect to the plain meaning of the words used (see People ex rel. Negron v. Superintendent, Woodburne Correctional Facility, 36 NY3d 32, 36 [2020]; Beck Chevrolet Co., Inc. v. General Motors LLC, 27 NY3d 379, 390 [2016]). Additionally, where the “words chosen and have ‘a definite meaning, involving no absurdity or contradiction, there is no room for construction and courts have no right to add or take away from that meaning’” (People v. Roberts, 31 NY3d 406, 418 [2018] [citations omitted]). Here, given that the words of 10 NYCRR §59.5 (e) are clear, the plain meaning controls.2 Reading the entire regulation reveals that it mandates certain techniques and methods be used by the “operator” in performing breath analysis, including that, (a) the machine meets certain criteria; (b) the subject be observed for 15 minutes before collection of a breath sample; (c) a system purge be conducted (on the machine) before any testing; (d) ensure that the result agrees with the reference standard within .01 percent weight per volume; and (e) the result of the breath analysis be expressed to the second decimal place. There are no prior written decisions on point and the history of the regulation does not provide any guidance on the issue in this case. Therefore, this court must attempt to interpret the regulation and impute its intent in the application. It is clear that section (e) mandates that the result of the breath analysis be expressed only to the second decimal place. There is no reasoning in the history of the regulation as to why this determination was made. As the regulation was originally enacted in 1972, the only rational conclusion that can be drawn is that there were discussions and debate on the issue, and it was decided that anything beyond the second decimal place was not reliable or accurate and therefore should be disregarded. Additionally, since the People will need to lay a foundation to have the results of the PBT admitted into evidence at the trial in front of a jury, 10 NYCRR §59.5 [e] will limit any testimony of the results of the PBT to the second decimal place. Therefore, to have the officer who administered the PBT testify at trial that the result was .07 BAC and then have an expert later testify that he/she used the PBT result of .078 BAC in the retrograde extrapolation analysis may cause confusion to the jury.3 Moreover, there is no logic to support a holding that a result from a PBT can only be reliably presented to a jury to the second decimal place but can be reported to an expert to the third decimal place (or fourth or even fifth, if available). Therefore, this court must follow the mandate of the regulation; consistent with the clear language of this provision and to avoid jury confusion, contrary to the People’s argument, the court will not permit the use of the PBT results by the People’s expert beyond “the second decimal place as found” pursuant to (10 NYCRR §59.5 [e]; see also People v. Dembeck, 145 Misc 2d 442, 443 [Dist Ct, Suffolk County 1989] ["if a reading is given to the third decimal place, the third digit is to be ignored"]; People v. Yambo, 190 Misc2d 110, 114 [Dist Ct, Suffolk County 2001] [the third decimal place reading shall not be considered in determining whether defendant's ability to operate a vehicle was impaired by alcohol]). This constitutes the decision of the court. Dated: September 28, 2023
