
    The People of the State of New York, Plaintiff, v Joan Flynn, Also Known as Janet Kelleher, Defendant.
    Supreme Court, Criminal Term, Queens County,
    July 22, 1985
    APPEARANCES OF COUNSEL
    
      John J. Santucci, District Attorney (Harry Nussdorf and Susan Rubin of counsel), for plaintiff. Marvin Zuckerberg for defendant.
   OPINION OF THE COURT

Vincent F. Naro, J.

After due consideration, the court makes the following findings of fact and conclusions of law at a hearing to determine the admissibility of the results of a blood-alcohol test performed on the defendant with an Intoximeter 3000. The People seek to offer the test results at the trial of the defendant upon an indictment charging a violation of Vehicle and Traffic Law § 1192.

FINDINGS OF FACT

Dr. Arthur Flores, a witness for the People, received a Bachelor of Science degree in chemistry from the University of Washington in 1956, and a Ph.D. in chemistry from the Catholic University, Washington, D.C., in 1965. He is a member of the National Safety Council, and a member of the Society of Sigma Si, a research organization. Since 1970, Flores has been employed as a chemist by the United States Department of Transportation, at the Transportation Systems Center in Cambridge Massachusetts. Currently, he is project manager of the Laboratory Support Project at Cambridge, which evaluates breath-alcohol testers submitted for inclusion on the Department of Transportation’s list of conforming products. In this capacity, he tested or supervised the testing of the Intoximeter 3000 in 1979, 1980 and, briefly, in 1983. Dr. Flores was qualified as an expert by the court on the functioning of, and scientific principles underlying the Intoximeter 3000.

Expert testimony was also received from Detective Richard Cerrato of the New York City Police Department, who testified on behalf of the People. Detective Cerrato received a Bachelor of Science degree in chemistry from Long Island University, and is a registered respiratory therapist. Since 1978, Cerrato has been the technical supervisor of the intoxicated drivers testing unit of the police laboratory, with responsibility for maintaining and calibrating breath-alcohol testing devices. In 1983, he received one week of training from Caldetect, the manufacturer of the Intoximeter 3000, on the operation of the device. Cerrato was qualified as an expert by the court on the operation of the Intoximeter 3000.

As Dr. Flores explained, the Intoximeter 3000 measures the quantity of ethyl alcohol contained in breath samples drawn from human subjects. The device detects and measures alcohol by two processes, the first of which makes use of infrared radiation and the second of which involves the passing of electric current through a semiconductor.

The Intoximeter’s infrared radiation test is grounded upon the Beer-Lambert law of absorption, which has been widely accepted in the scientific community for over 80 years. According to Beer-Lambert, chemical substances interact with radiation to a degree dependent upon the amount of the chemical substance present. Thus, ethyl alcohol vapor into which infrared radiation is directed will absorb some of that radiation, and the quantity of radiation absorbed will vary in direct proportion to the quantity of ethyl alcohol present. A person who is tested with the Intoximeter 3000 exhales into the device, his breath is captured in a cell, and a wire adjacent to the cell is heated to produce infrared radiation. The radiation is focused, by means of reflectors, through a window at one end of the cell. At the other end of the cell is a monitory device capable of detecting radiation on the absorption frequency of ethyl alcohol, 3.39 microns. Radiation passing out of the cell is measured by the radiation detector. This datum is reported to the Intoximeter’s integral computer, which is preprogrammed as to the amount of radiation originally directed into the breath sample cell and as to the cell’s capacity. Based upon the amount of radiation absorbed and the capacity of the breath sample cell, the computer calculates the quantity of ethyl alcohol in the breath sample.

However, the testimony at the hearing revealed that ethyl alcohol is not the only chemical substance that can be present in the human body which absorbs radiation at a frequency of 3.39 microns. Dr. Flores stated that acetone has been found in high concentrations in the blood of diabetics and of persons on stringent diets, and that acetone absorbs radiation at 3.39 microns. Therefore, the Intoximeter also measures breath-alcohol by means of an electrical conductivity test and, to ensure that the substance being measured is actually ethyl alcohol, mathematically compares the results of the two tests with figures derived from performing the same tests on atmospheric samples known to contain ethyl alcohol. A proportional equivalence of test results confirms the presence of ethyl alcohol.

The Intoximeter’s conductivity test is based upon the operation of semiconductors, which possess characteristics that are widely accepted in the scientific community. Semiconductors differ from other conductors of electricity in that the conductivity of a semiconductor increases in direct proportion to increases in the quality of volatile chemical substances in the atmosphere surrounding a semiconductor. The testimony at the hearing established that ethyl alcohol is a volatile chemical substance. Therefore, the introduction of ethyl alcohol fumes into a container through which a semiconductor passes will increase the conductivity of the semiconductor, and such increase will be in direct proportion to the amount of ethyl alcohol introduced into the cell.

The Intoximeter contains a semiconductor within a unit known as a Taguci cell. Electric current of known voltage is passed through the semiconductor, and its output voltage is monitored. A breath sample from the person to be tested is introduced into the Taguci cell, and any changes in output voltage are reported to the Intoximeter’s computer. The computer calculates the quantity of volatile substance in the Taguci cell, then proceeds to verify, mathematically, that the chemical substance measured in the Taguci cell and by means of the infrared test is ethyl alcohol.

CONCLUSIONS OP LAW

The law with respect to the admissibility of evidence derived from a scientific test was set forth in Frye v United States (293 F 1013, 1014 [DC Cir 1923]): "in admitting expert testimony deduced from a * * * scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Our appellate courts have applied this standard in ruling on such matters. (People v Hughes, 59 NY2d 523 [1983]; People v Leone, 25 NY2d 511 [1969]; People v Forte, 279 NY 204 [1938].)

Having found that the Beer-Lambert law of absorption, the nature and functioning of semiconductors and the various implementing technologies assembled in the Intoximeter 3000 are widely accepted in the appropriate areas of the scientific community, this court concludes that the results of the blood-alcohol test performed upon the defendant with an Intoximeter 3000 will be admissible into evidence as reliable. 
      
      . Vehicle and Traffic Law § 1192 (2) provides: "No person shall operate a motor vehicle while he has .10 of one per centum or more by weight of alcohol in his blood as shown by chemical analysis of his blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this chapter.”
     
      
      . It has long been established, and this court takes judicial notice, that a constant ratio exists between the quantity of ethyl alcohol in the lungs (and thus on the breath) of an individual and the quantity of ethyl alcohol in his blood. (See, e.g., People v Donaldson, 36 AD2d 37, 39 [1971], citing 4 Gray, Attorney’s Textbook of Medicine § 133.73 [1].) Thus, a determination as to the amount of alcohol on a subject’s breath readily permits accurate calculation of the amount of alcohol in his blood.
     
      
      . Infrared radiation over varying wavelengths may be scanned with a Spectrophotometer, which technology is widely accepted in the scientific community and used for general research. The Intoximeter 3000 does not contain a Spectrophotometer, but rather a technological derivative thereof capable of scanning radiation at 3.39 microns. As Flores explained, the ethyl alcohol absorption band is not a single wavelength, but rather a region, with 3.39 microns being its most prominent part.
     
      
      . This allows a calculation of the alcohol content of the subject’s lungs, and, thus, of his blood. (See, n 3, supra.)
      
     
      
      . Semiconductors are used in industry to monitor the leaking of volatile gases. Indeed, the semiconductor apparatus incorporated into the Intoximeter 3000, a Taguci cell, is commonly used for this purpose, and is accepted as reliable in the scientific community.
     