Opinion
March 6, 1984
Appeal from the Supreme Court, Monroe County, Corning, J.
Present — Dillon, P.J., Denman, Boomer, Green and O'Donnell, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment of conviction, after jury trial, of the felony of driving with more than .10% of alcohol in his blood (Vehicle and Traffic Law, § 1192, subds 2, 5) and of the traffic infraction of driving without headlights (Vehicle and Traffic Law, § 375, subd 2, par [a], cl 1). We affirm. ¶ The defendant's sole defense at trial was that the breathalyzer test result (.13%) was inaccurate and unreliable. On appeal defendant argues that the court's charge to the jury was improper in that it created a conclusive presumption that if the breathalyzer test was properly administered, defendant must be found guilty of a violation of the Vehicle and Traffic Law (§ 1192, subd 2). The court gave a supplemental charge stating that "you may presume it, but obviously the presumption may be rebutted by other evidence you may properly consider." ¶ The court's charge on the breathalyzer was correct and in accord with precedent which clearly indicates that there is no longer any question about the general reliability of the breathalyzer test when properly administered by a qualified operator ( People v Gower, 42 N.Y.2d 117; People v Donaldson, 36 A.D.2d 37). There is no legal basis for the charge requested by the defendant, that "the jury must find the test was based on a valid scientific theory before they accept it as evidence" and the court properly refused to give such a charge. ¶ The court permitted the defendant to present expert testimony that the breathalyzer test was not accurate. The court charged the jury that they could give whatever weight they wanted to such testimony and the jury obviously rejected it. ¶ The other issues raised are without merit.