Dep’t of Sanitation v. Johnson OATH Index No. 746/05 (Oct. 5, 2005)

Sanitation worker tested positive for presence of alcohol during a randomly administered breath test. Department established a foundation for admission of the results of breathalyzer. Worker also guilty of failing to be home or accessible and available for home visit during sick leave. ALJ recommends 60-day suspension. ______

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of DEPARTMENT OF SANITATION Petitioner - against - BERNARD JOHNSON Respondent ______

REPORT AND RECOMMENDATION TYNIA D. RICHARD, Administrative Law Judge This employee disciplinary proceeding was referred by petitioner, the Department of Sanitation (“Department”), pursuant to section 16-106 of the New York City Administrative Code. Respondent Bernard Johnson, a sanitation worker, is charged with testing positive for alcohol following a random test administered on September 30, 2004, and with being out of residence while on sick leave on April 30, 2004. The hearing was conducted before me on December 21, 2004, and continued to March 10, 2005, upon the Department’s request to present additional evidence. Petitioner presented the testimony of two witnesses: Joseph Stampfel, the supervisor of the Department’s Drug and Alcohol Testing Lab, and Amita Desai, a breath alcohol technician. Respondent did not testify or call witnesses at the hearing. For the reasons set forth below, I find that petitioner established a proper foundation for the admission of results from the blood alcohol test administered to respondent on September 30, -2-

2004, which established the presence of alcohol in respondent’s body while at work. I also find respondent guilty of violating sick leave rules requiring him to be at home or accessible and available for a home visit on April 30, 2004. For this misconduct, I recommend a penalty of 60 days’ suspension.

ANALYSIS

B105159 – Positive Alcohol Test Respondent is charged with having alcohol, a substance prohibited by the Department, present in his body while on duty on September 30, 2004. Petitioner submitted as evidence the positive results of a blood alcohol test randomly administered to respondent using the Draeger Breathalyzer 7410 machine. Respondent does not assail the randomness of his selection as the subject of testing. Rather, he contends that the test results are inadmissible as evidence against him for three reasons: the machine used was not proven to be accurate and reliable, or properly calibrated at the time of the testing, and there was no evidence about what the breathalyzer machine measures. For the proper admission of the test results, petitioner has the burden of proving by a preponderance of the evidence (1) that the instrument used to administer the test is accurate and reliable, (2) that the instrument was functioning properly at the time the test was administered, and (3) that the test was properly administered. See People v. Campbell, 73 N.Y.2d 481, 484, 541 N.Y.S.2d 756 (1989); Dep’t of Correction v. Beckles, OATH Index No. 490/91 (July 26, 1991). I find that petitioner met its burden as to all three elements. First, petitioner must prove that the instrument used to obtain the test results is accurate and reliable. To administer its alcohol testing program, the Department utilizes the Breathalyzer 7410 manufactured by Draeger (“Draeger” or “Breathalyzer”) (Tr. 6-8). The Department has used the Draeger since 1995, and it has about six of the machines (Tr. 74). The machine with serial number ARP0126 was used to test respondent. As an initial matter, courts have already dispensed with the need for expert testimony to establish the nature, function, or scientific principles underlying breathalyzer machines. Courts regularly take notice that, when properly operated, these instruments provide reliable measurements of the concentration of alcohol in the blood. See People v. Mertz, 68 N.Y.2d 136, -3-

148, 506 N.Y.S.2d 290, 296 (1986); People v. Donaldson, 36 A.D.2d 37, 40, 319 N.Y.S.2d 172, 176 (4th Dep’t 1971). Although it is no longer necessary to use expert testimony to establish the general scientific reliability of the breathalyzer technology, it is necessary to qualify the particular machine or instrumentation used by presenting sufficient evidence of its accuracy and reliability. There are several means by which the accuracy and reliability of a particular machine may be established. It may be established by the presentation of testimonial and documentary evidence regarding the characteristics of the machine, for example, through the submission of a user manual and testimony of a trained technician. It may be established by taking notice of prior decisional law in which a court has found the machine to be accurate and reliable. See, e.g., Dep’t of Correction v. Beckles, OATH 490/91, at 19 (taking notice of the accuracy and reliability of the Intoximeter 3000 machine on the basis of People v. Flynn, 129 Misc.2d 176, 492 N.Y.S.2d 882 (Sup. Ct. Queens Co. 1985)). It may also be established by the machine’s presence on a list of instruments approved by government regulation. New York courts have upheld the practice of using an instrument’s presence on the Conforming Products List as a sufficient basis for establishing the accuracy and reliability of that instrument, so as to dispense with the necessity of expert testimony to establish an evidentiary foundation. See People v. Hampe, 181 A.D.2d 238, 585 N.Y.S.2d 861 (3d Dep’t 1992); People v. O’Brien, 2001 WL 1722772 (Co. Ct. of N.Y. Erie Co. 2001). The Draeger Breathalyzer 7410 is contained on the National Highway Traffic Safety Administration’s Conforming Products List of Evidential Breath Measurement Devices (see 69 Fed. Reg. 42237), which was adopted by the State of New York through regulations promulgated by the state Department of Health. See 10 NYCRR § 59.4 [b] [6] [x]. In People v. Hampe, the defendant against whom the positive blood alcohol test was asserted as evidence argued that the results were inadmissible because the State had failed to put on expert testimony establishing the accuracy and reliability of the device used to obtain the results. 181 A.D.2d at 240, 585 N.Y.S.2d at 861. The court disagreed and found that the accuracy and reliability of the BAC Verifier was established by the machine’s inclusion on the list of breath-testing instruments approved by the state Department of Health in regulations promulgated pursuant to Vehicle and Traffic Law § 1194 (4)(c) (see 10 NYCRR § 59.4 [b]). Id.; -4- accord People v. O’Brien, 2001 WL 1722772 (Co. Ct. of N.Y. Erie Co. 2001) (following the reasoning in Hampe, the court accepted the accuracy and reliability of the BAC Datamaster on the basis of its presence on the Conforming Products List). The court in Hampe noted that the basis for requiring expert testimony in support of the accuracy and reliability of a particular machine arises from “the general evidentiary rule that scientific evidence will only be admitted ‘if the procedure and results are generally accepted as reliable in the scientific community.’” People v. Hampe, 181 A.D.2d at 240, 585 N.Y.S.2d at 861, quoting People v. Hughes, 59 N.Y.2d 523, 537, 466 N.Y.S.2d 255, 261 (1983), cert. denied, 492 U.S. 908, 109 S.Ct. 3221 (1989). The court therefore concluded that “general acceptance by the scientific community had been sufficiently established” by the inclusion of the BAC Verifier on the list of breath-testing instruments approved by Department of Health regulations. Hampe, 181 A.D.2d at 240, 585 N.Y.S.2d at 861. Thus, I find that the foundation evidence necessary to establish the accuracy and reliability of the Draeger is sufficiently established by the machine’s inclusion on the Department of Health’s Conforming Products List. Second, the Department must prove that the device was functioning properly at the time the test was administered. In order to ensure the proper functioning of the Draeger, the Department conducted accuracy tests at least weekly and an annual calibration check (Tr. 85). The Department offered the testimony of two members of its Drug and Alcohol Testing Lab to establish the bona fides of its testing program and instrumentation. Amita Desai was certified as a breath alcohol technician in 1996, and she administers breath alcohol tests and urine tests for the Department (Tr. 38). She performs five to 10 breath alcohol tests per day using the Draeger (Tr. 6-8). Ms. Desai stated that she is familiar with the federal and local rules regarding alcohol testing (Tr. 36). She is also certified to use the Draeger and was trained to use the machine by her supervisor Joseph Stampfel, who has worked for the Department since 1986 (Tr. 9, 79). As the supervisor for the Drug and Alcohol Testing Lab, Mr. Stampfel’s job is to ensure that the technicians perform their duties according to regulations set forth by the Federal Transportation Act (Tr. 73). Mr. Stampfel is certified to operate and calibrate the Draeger, as well as to train others to use it (Tr. 76). He testified that he calibrated the Draeger on January 12, 2004, eight months -5- prior to respondent’s test, in accordance with standards established by the manufacturer and taught to him by a Draeger representative (Tr. 88-89). The machine was next calibrated in January 2005. He explained how the machine was calibrated, which is a process that ensures proper function of the machine. He stated that the Draeger has a calibration chip that puts the machine into calibration mode. A “wet” test is then conducted in which a 1% solution of alcohol, 500 milliliters, is put into a simulator, brought to 32 degrees centigrade, and then air is blown through the simulator into the Breathalyzer (Tr. 77, 88, 121). Ms. Desai testified that the dry gas accuracy test she administered on September 30 registered 0.039, which she and Mr. Stampfel said indicated that the machine was working accurately that day (Tr. 24, 106; Pet. Ex. 2). In addition, Mr. Stampfel said that the Draeger can display eight different error messages (e.g., to warn of inadequate breath sample, a problem with the sensor, or a low battery) if the breath test did not work or the machine was not functioning properly (Tr. 107-08). If an error message is received, the technician must obtain another instrument to administer the test and start over again. Ms. Desai said that no error message was received during respondent’s testing (Tr. 39). The manufacturer requires that the Breathalyzer be tested for accuracy once a month and calibrated once a year. Mr. Stampfel testified that the Department tests its machines for accuracy once a week, each Friday, and after every positive test to ensure that the instrument is working within range (Tr. 85, 90). He said that the Department met and exceeded the manufacturer’s standards for calibration and accuracy testing. Ms. Desai’s testimony about the accuracy testing that she conducted immediately following respondent’s positive test is more fully described below. The tribunal in Beckles listed three kinds of evidence that might be used to show whether an instrument is functioning properly: (1) the testimony of a witness who had examined the machine and found that its essential component parts were functional; (2) testimony that all relevant malfunctions would be apparent, for example, by means of the machine’s self-diagnosis mechanism; or (3) testimony that the machine had accurately measured the alcohol content of various control samples, i.e., proficiency testing. Dep’t of Correction v. Beckles, OATH 490/91, at 19. Under this standard, petitioner provided more than enough credible evidence of proper functioning. -6-

As indicated, there was no evidence of malfunction indicated by the Draeger’s self- diagnosis mechanism, and Ms. Desai credibly testified that the air blank test that she performed between the screening test and confirmatory test demonstrated that no residue was left in the apparatus from the prior test (Tr. 21; Pet. Ex. 2). Accordingly, I find that petitioner has proved by a preponderance of the evidence that the Draeger used to test respondent was functioning properly on the day in question. Last, the Department must establish that the test was properly administered in this instance. Ms. Desai outlined the procedure she follows when administering an alcohol breath test and testified that she followed those procedures when administering the breath alcohol test to respondent on September 30, 2004 (Tr. 37). She said that she administers the test while alone with the employee, and she immediately calls her supervisor if she receives a positive result (Tr. 9-13). She begins each test by checking the employee’s photo ID and social security number to verify the employee’s identity. She then fills out the employee’s name on the U.S. Department of Transportation Alcohol Testing Form (“DOT form”) (Pet. Ex. 2), and has the employee read and sign it. Then she administers the test: she turns on the machine, unseals an unused mouthpiece, and inserts it into the machine. A green light in the machine comes on, and a test number is displayed (Tr. 14). The machine automatically assigns a different number to each test given and a new mouthpiece is used for each test. She instructs the employee to take a deep breath and blow steadily into the machine for a few seconds until the green light on the machine goes out (Tr. 15-16). A test result of 0.020 percent blood alcohol content or above is considered a positive. In this case, Ms. Desai testified that she conformed to these procedures, and that the screening test administered to respondent at 6:37 a.m. on September 30, 2004, registered a blood alcohol content of 0.062 percent (Tr. 20, 33). According to protocol, she printed out the test results and contacted her supervisor, Christopher Anicher. After a positive screening test, the technician must perform an “air blank test” prior to administering the confirmation test in order to clear out any residue from the first test sample (Tr. 20, 34). The air blank test that Ms. Desai administered prior to the confirmatory test registered a 0.000 percent blood alcohol content (Tr. 21; Pet. Ex. 2). -7-

Procedure requires the technician to conduct a confirmatory test 15 minutes after a positive screening test is administered. The technician must observe the employee continuously during that 15-minute interval. At 6:54 a.m., 17 minutes after the screening test, Ms. Desai conducted the confirmatory test, which Mr. Anicher also observed (Tr. 34-35). She gave the employee a new mouthpiece and he performed the test again (Tr. 22). Again, the test produced a positive result, reading 0.057 percent blood alcohol content (Tr. 35). Ms. Desai printed the results. She then conducted the dry gas accuracy test (Tr. 23-24). The results of the accuracy test, administered at 6:58 a.m., were 0.039, clearly within the range of plus or minus 0.005, thus confirming the machine’s accuracy (Tr. 36). She gave the results to respondent and printed out receipts for all three tests and attached them to the DOT form (Tr. 20, 36). Finally, she signed the printout verifying the results of the dry gas accuracy test (Pet. Ex. 2). I credited Ms. Desai’s testimony describing the steps that she took to administer respondent’s test, which were in accordance with the manufacturer’s requirements. Ms. Desai demonstrated her qualifications to perform this work and her experience using the same machine throughout her nine-year tenure with the Department. Accordingly, I find that petitioner has met all three criteria for the proper admission of the test results produced by the Draeger Breathalyzer 7410. Departmental rules provide that “[e]mployees are prohibited from having in their system alcohol, controlled substances or unauthorized prescription drugs.” PAP 95-05, § 3.0. Section 5.7 states that the “presence of prohibited substances in one’s body as demonstrated by a positive substance use test is a violation of this rule.” These rules specifically cite the requirements of the federal Omnibus Transportation Employee Testing Act of 1991, which prohibits employees from using or possessing alcohol while on the job, or within four hours prior to reporting to work. Id. For obvious safety reasons, the Department cannot tolerate employees who drive the City’s sanitation trucks to be impaired by alcohol. The test results entered as evidence in this case confirm the presence of alcohol in respondent’s body while he was on duty on September 30, 2004. This is misconduct that violates section 5.7 of PAP 95-05. -8-

F110184 – Failure to Remain Home or Accessible and Available for Home Visit The parties stipulated to the following facts (Tr. 4-5). On April 29, 2004 respondent was on sick leave. He designated his home telephone number as the location where he could be reached. Despite three attempts made by a Department investigator, respondent was not reached at that number. Respondent had no authorization to be out of residence on that date, and the Department received no phone contact from respondent. Pursuant to Code of Conduct rules 7.5 and 7.6, employees are required to remain at home, and accessible and available for a sick leave home visit. The facts adduced at the hearing establish that respondent was either not at home or was inaccessible and unavailable for a home visit on April 30, 2004, in violation of Departmental rules. For this, respondent is guilty of misconduct.

FINDINGS AND CONCLUSIONS 1. Respondent tested positive for the presence of alcohol in his system while at work on September 30, 2004.

2. Respondent failed to remain at home or accessible and available for a home visit while on sick leave on April 30, 2004.

THEREFORE:

Petitioner has sustained both charges alleged.

RECOMMENDATION

Upon making the above findings and conclusions, I obtained and reviewed an abstract of respondent’s personnel record provided to me by the Department. Respondent was appointed to his position as a sanitation worker on April 16, 1990. He has a lengthy disciplinary record. In 1993, he forfeited one vacation day for failure to submit medical documentation. In 1995, he received a reprimand for failure to report to the clinic while on medical leave. In 1996, 1997, 1998, and 1999, he received penalties for medical leave violations that included forfeiture of three vacation days, a reprimand, forfeiture of two vacation days, and forfeiture of three vacation days, respectively. In 2000, he received three penalties involving medical leave: two vacation -9- days, two suspension days, and a 44-day penalty split between suspension and vacation. For the charges involving the 44-day penalty, respondent entered into a “last chance” agreement, which he successfully completed in 2002. Also, in 2002, respondent received one suspension day for an AWOL. In 2003, he received four penalties for medical leave violations, including two reprimands, one day’s suspension, and a $50.00 fine. Here, respondent has been found guilty of having alcohol in his system while on duty, and of violating the sick leave home attendance rule. The circumstance of respondent’s drinking, including whether he suffers from an alcohol dependence that would constitute a disability, is unclear since respondent did not testify or provide evidence of mitigation. Alcoholism has been held to be an affirmative defense to disciplinary charges, on the theory that an employee should not be punished because of his or her disability. See Dep’t of Correction v. Lynch, OATH Index No. 1538/98 (Jan. 15, 1999). Where such a defense is not available or is not proven, the penalties for off-duty and on-duty misconduct involving alcohol-related offenses are substantial. See Health and Hospitals Corp. (Kings County Hospital Center) v. Ricketts, OATH Index No. 535/03 (Mar. 27, 2003) (60-day penalty for employee who was intoxicated while on duty); Transit Auth. v. Monteverde, OATH Index No. 1198/94 (Dec. 5, 1994) (60-day penalty for second offense of being unfit for duty due to alcohol intoxication, where ALJ found termination excessive because it would deprive respondent of retirement benefits); Transit Auth. v. Orlando, OATH Index No. 910/93 (Aug. 12, 1993) (transit police officer guilty of off-duty intoxication given 45-day suspension was spared from termination after showing that he had commenced rehabilitation). For employees whose positions involve law enforcement, such misconduct can result in termination. See, e.g., Dep’t of Correction v. Flaherty, OATH Index No. 413/05 (Feb. 16, 2005), modified on penalty, Comm'r Dec. (Mar. 31, 2005) (ALJ recommended 60-day suspension for misconduct consisting of off-duty DWI conviction, but agency terminated employee who received probation as a part of his criminal sentence, citing inconsistency with law enforcement purpose of his position); Dep’t of Correction v. Mason, OATH Index No. 2229/99 (Sept. 14, 1999) (respondent terminated at default hearing for being intoxicated while on duty; ALJ cited extensive prior discipline); Transit Auth. v. Brady, OATH Index No. 959/93 (Aug. 13, 1993) (officer terminated after second offense of being intoxicated on duty). -10-

The Department seeks respondent’s termination, citing the safety-sensitive nature of his position, which requires him to operate a sanitation truck, and the danger that he might pose to himself, his co-workers, and the public at large. I agree that operating a sanitation truck while impaired is very reckless conduct and, while there is no evidence that respondent drove a truck in that condition, being impaired by alcohol when he could have been asked to operate such a vehicle warrants a serious penalty. Although the evidence provides no details of respondent’s alcohol use, his disciplinary record indicates that he served a 44-day penalty in 2000 for a charge related to “substance abuse.” The remainder of respondent’s prior penalties, though numerous, are relatively light, ranging from reprimands to the forfeiture of three vacation days. Moreover, these circumstances are distinguishable from the cases in which termination was upheld, because respondent’s job does not carry the heightened responsibility of law enforcement, nor was the amount of alcohol in his system above the legal limit. I therefore disagree that termination is the only appropriate penalty in this case, although I believe a substantial penalty is warranted. Having been found guilty of two separate charges in this case, respondent may be required to serve as much as a 30-day penalty for each, according to section 16-106 of the Administrative Code. See Dep’t of Sanitation v. Singer, OATH Index No. 2033/00 (Mar. 15, 2001) (recommending a cumulative penalty that included forfeiture of pay for 39 days and suspension without pay for 85 days). Thus, I recommend a penalty of 60 days’ suspension.

Tynia D. Richard October 5, 2005 Administrative Law Judge

SUBMITTED TO:

JOHN J. DOHERTY Commissioner

APPEARANCES:

RITA R. BRACKEEN, ESQ. Attorney for Petitioner

KIRSCHNER & COHEN, P.C. Attorneys for Respondent -11-

BY: ALLEN COHEN, ESQ.