AT2 order dated November 26, 2014, reversing judgment of conviction for DWI. Decision below: 46 Misc. 3d 20, 998 NYS2d 558. Abdus-Salaam, J., granted leave to People July 2, 2015.

ISSUE PRESENTED: Crawford v. Washington: Whether a police officer who observed the administration of a breathalyzer test by another officer, and who was also qualified to administer it, and who testified at trial because the testing officer was unavailable, satisfied the standards for qualifying as a substitute witness under Bullcoming v. New Mexico, 131 S.Ct. 2705. (Assigned counsel: Seymour James, Jr., Legal Aid Society Criminal Appeals Bureau, 199 Water Street, NYC 10038.)

Issue Before the Court: Whether a police officer who observed—but did not administer—a Breathalyzer test could testify in lieu of the administering officer at trial consistent with the Confrontation Clause.

 

Held: Yes. The Court found that because the testifying officer was recounting his own observations and conclusions, which he was able to advance because of his own experience with administering breath tests, Hao Lin’s right to confrontation was not violated.

 

CAL Observes: In this first application of People v. John, the Court is continuing to flesh out the contours of the Confrontation Clause as it applies to forensic testing. The apparent rule is to allow testimony from the non-primary analyst where that eventual witness was physically present to supervise or observe the testing procedure, and had some familiarity with that protocol. Here, that meant that the non-administering officer who had been present for the Breathalyzer examination, which he witnessed occur, could testify. The Court did not appear overly troubled by the officer not having personally observed or performed verification of the simulator solution, a step in the testing process, dismissing any concerns by citing to the officer’s testimony about what this step looked like in the normal course.