The Court of Appeals determined the testimony of an officer (Mercado) who was present throughout the DWI breathalyzer test process administered by another officer (Harriman) did not violate the Confrontation Clause. Harriman had retired and moved out of state by the time of defendant’s trial:
The only step in the testing process that the Appellate Term found Mercado did not personally perform or observe, and the sole stated basis for that court finding a Confrontation Clause violation, was verification of the simulator solution temperature as displayed on the machine. Inasmuch as the written 13-step checklist completed by Harriman was not admitted into evidence, no testimonial statement by a nontestifying witness concerning the temperature — or any aspect of the testing procedure — was used against defendant. Thus, any argument as to Mercado’s failure to observe the temperature reading would merely relate to whether there was a proper foundation for his testimony, which would not implicate a Confrontation Clause violation … . However, to the extent that the Appellate Term based its decision on the failure of an “essential” step in the testing procedure, the trial record contradicts that court’s conclusion that there was an absence of evidence that the machine will shut itself down and fail to perform the test if the temperature is outside the proper range … . * * *
Mercado observed Harriman perform all of the steps on the checklist and saw the breathalyzer machine print out the results. Based upon his personal observations, Mercado — as a trained and certified operator who was present for the entire testing protocol — was a suitable witness to testify about the testing procedure and results in defendant’s test. Inasmuch as Mercado testified as to his own observations, not as a surrogate for Harriman, there was no Confrontation Clause violation. Any alleged irregularities concerning the testing procedure would relate to the weight of Mercado’s testimony, not its admissibility … . People v Hao Lin, 2017 NY Slip Op 01253, CtApp 2-16-17
CRIMINAL LAW (TESTIMONY BY OFFICER WHO WAS PRESENT BUT DID NOT ADMINISTER THE DWI BREATHALYZER TEST DID NOT VIOLATE THE CONFRONTATION CLAUSE)/EVIDENCE (CRIMINAL LAW, TESTIMONY BY OFFICER WHO WAS PRESENT BUT DID NOT ADMINISTER THE DWI BREATHALYZER TEST DID NOT VIOLATE THE CONFRONTATION CLAUSE)/CONFRONTATION CLAUSE (DWI, TESTIMONY BY OFFICER WHO WAS PRESENT BUT DID NOT ADMINISTER THE DWI BREATHALYZER TEST DID NOT VIOLATE THE CONFRONTATION CLAUSE)/DRIVING WHILE INTOXICATED (BREATHALYZER, TESTIMONY BY OFFICER WHO WAS PRESENT BUT DID NOT ADMINISTER THE DWI BREATHALYZER TEST DID NOT VIOLATE THE CONFRONTATION CLAUSE)/BREATHALYZER (DWI, (TESTIMONY BY OFFICER WHO WAS PRESENT BUT DID NOT ADMINISTER THE DWI BREATHALYZER TEST DID NOT VIOLATE THE CONFRONTATION CLAUSE)