People v. Hao Lin

In People v. Hao Lin, 46 Misc 3d 20, an Appellate Term of the Second Department reversed a conviction based upon testimony of a "surrogate" witness who was not the original technician who administered the test, because the substitute witness, who observed most of the test, did not observe the instrument reading of the temperature of the simulator solution and there was no evidence that the machine would shut itself down or otherwise abort the test if the temperature was outside the required range, which would lead to an inaccurate reading. Regarding confrontation, it is also important to note that the Hao Lin Court observed: "While testimony regarding the procedures of the test itself must be provided by one with expertise and knowledge to satisfy a Confrontation Clause challenge, the procedures of the test itself, in this case as set forth in a 13-step "operational checklist," such as providing information in relation to the identity of the person being tested and the time and location of the test and to other matters unrelated to ensuring the integrity of the test itself, pressing buttons when prompted, and instructing the testee to produce a breath sample, require little expertise or knowledge unique to the tester, given that the instrument self-calibrates, shuts down if the calibration fails, and will not perform the test if a testable sample is not provided."