Defendants in these cases were arrested for drunk driving offenses in separate and unrelated incidents. In each case the police took a single breath sample using a Smith & Wesson Model 900A Breathalyzer machine, and the test indicated a blood alcohol content in excess of the legal limit (see, Vehicle and Traffic Law § 1192 , ; § 1195 ). Defendants then moved to suppress the breathalyzer test results arguing, as they do in this court, that because the administration of the tests necessarily destroyed the breath samples, the Due Process Clause of the State Constitution (NY Const, art I, § 6) required that the police take and preserve a second sample for later use by defendants.
We have long recognized that while this court is, of course, bound by the decisions of the Supreme Court in matters of Federal law, "`in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States'" (People ex rel. Arcara v Cloud Books, 68 N.Y.2d 553, 557, quoting People v Barber, 289 N.Y. 378, 384).
Recently, in People v P. J. Video (68 N.Y.2d 296), we reviewed some of the many factors and considerations relevant to this court's independent judgment of whether, in a particular case, the New York State Constitution provides greater protection than is afforded by the Federal Constitution. In that case we first identified "interpretive" factors, which focus on differences in the text, structure, or historical underpinnings between the State and Federal Constitutions (id., at 302).
However, in People v P. J. Video (supra) we did not stop our inquiry with an interpretive analysis. We recognize that regardless of whether there exists a Federal constitutional provision parallel to a State provision, we must undertake a "noninterpretive" analysis, proceeding from "a judicial perception of sound policy, justice and fundamental fairness" (id., at 303).
Applying these principles, we find no basis for departing from Trombetta as a matter of State constitutional law. In the past, in interpreting the State Due Process Clause we have at times performed an interpretive analysis (e.g., Sharrock v Dell Buick-Cadillac, 45 N.Y.2d 152, 159-160 [noting that, unlike the 14th Amendment of the Federal Constitution, the State due process provision lacks express reference to a State-action requirement]) and a noninterpretive analysis (e.g., Cooper v Morin, 49 N.Y.2d 69, cert denied 446 U.S. 984 [rejecting the reasoning of Bell v Wolfish, 441 U.S. 520]). As recognized by defendants in the case before us, however, the interpretive factors of textual, structural and historical differences between the due process provisions are not material for present purposes.
Under a noninterpretative analysis, there can be no doubt in New York that the fairness of a criminal proceeding is of particular State concern, and New York historically has provided various protections in this area above the Federal constitutional minimum (see, e.g., People v Hobson, 39 N.Y.2d 479 [right to counsel protections]; People v Isaacson, 44 N.Y.2d 511 [due process limits on police conduct]). The Supreme Court's analysis and result in Trombetta, however, are consonant with New York State law and interests and, we believe,
The Trombetta decision, written for a unanimous Supreme Court, rests upon two propositions: first, that the breathalyzer test is accurate, and second, that a defendant at trial can adequately explore malfunctions caused by faulty calibration, radio wave interference, contamination of the sample by foreign objects, or operator error by examining the machine, reviewing calibration and similar records, and questioning the officer who administered the test.
Although defendants in this case dispute the accuracy of these premises, decisions of this court also amply support the Supreme Court's conclusions. Recently we reaffirmed our longstanding conclusion that "the scientific reliability of breathalyzers in general is no longer open to question" (People v Mertz, 68 N.Y.2d 136, 148, citing People v Gower, 42 N.Y.2d 117). Moreover, in this State a positive breathalyzer test establishes only a prima facie case and is not per se evidence of guilt, thus allowing defendant to argue, for example, that his blood alcohol content was lower when he was driving than when the test was given (People v Mertz, supra, at 146).
In addition, when a breathalyzer test is sought to be used against a defendant at trial "the People must introduce evidence from which the trier of fact could reasonably conclude * * * that the testing device was in proper working order at the time the test was administered to defendant * * * and that the chemicals used in conducting the test were of the proper kind and mixed in the proper portions" (People v Freeland, 68 N.Y.2d 699, 700). Finally, other avenues of challenge to the accuracy of the breathalyzer test are available (see, People v Thomas, 121 A.D.2d 73, affd 70 N.Y.2d 859 [foreign object in the defendant's mouth can result in a false breathalyzer reading]; People v English, 103 A.D.2d 979 [defendant may not be denied discovery which prevents him from challenging the reliability and accuracy of the machine]). In sum, the analysis of the court in Trombetta, which we find persuasive, finds full support in the decisions of the courts of this State.
Defendants argue, however, that notwithstanding the accuracy of the breathalyzer test or the alternative avenues for disclosing machine malfunction, the strong protection of defendants' access to information under New York law requires a different result than that reached by the Trombetta court
Accordingly, we conclude that as a matter of State constitutional law the police are not required to obtain and preserve a second breath sample for later use by the accused, and the orders of the Appellate Term should, therefore, be affirmed.