— Appeal from a judgment of the County Court of Tompkins County (Barrett, J.), rendered May 12, 1983, upon a verdict convicting defendant of two counts of the crime of operating a motor vehicle while under the influence of alcohol, as a felony. 11 Answering the call of a neighbor, a police officer observed defendant behind the steering wheel of a car protruding from a ditch. After smelling alcohol on defendant’s breath and observing his performance in certain field sobriety tests, the police officer placed defendant under arrest for driving while intoxicated. A breathalyzer test showed that defendant had .18% alcohol in his blood. Defendant was convicted, after a trial, of operating a motor vehicle with at least .10% of alcohol in his blood (Vehicle and Traffic Law, § 1192, subd 2) and operating a motor vehicle while in an intoxicated condition (Vehicle and Traffic Law, § 1192, subd 3). This appeal by defendant ensued. 11 Prior to trial, defense counsel sought all Brady material and all material relating to the breathalyzer test. The trial court expressly denied discovery of records of the breathalyzer machine. This decision was error. A defendant is entitled to discovery of: “Any written report or document, or portion thereof, concerning a * * * scientific test * * * relating to the criminal action or proceeding which was made by, or at the request or discretion of a public servant engaged in law enforcement activity” (CPL 240.20, subd 1, par [c]). Since the calibration records were essential to the defense that the breathalyzer machine was not operating properly, they are clearly discoverable. U This error was not rendered harmless by the strength of the People’s case which included other evidence of intoxication. The indictment charged two distinct offenses, operating a motor vehicle with at least .10% of alcohol in his blood (Vehicle and Traffic Law, § 1192, subd 2) and operating a motor vehicle while in an intoxicated condition (Vehicle and Traffic Law, § 1192, subd 3). The former crime is committed when a person “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” (Vehicle and Traffic Law, § 1192, subd 2). The sole evidence supportive of such a conviction would be a result of a chemical test such as a breathalyzer, and other evidence such as the observations of witnesses would not be relevant to a charge based on this statutory provision. The latter crime is committed when a person operates a motor vehicle “in an intoxicated condition” (Vehicle and Traffic Law, § 1192, subd 3). A conviction of this crime could be based on any evidence of intoxication, including testimony of witnesses as well as the result of a chemical test *980showing a blood alcohol level of more than .10% 11 In this case, the breathalyzer test was the sole evidence for the count based on subdivision 2 of section 1192 of the Vehicle and Traffic Law and was some evidence for the count based on subdivision 3 of that statute. Defendant’s sole challenge to the breathalyzer test result was the accuracy and reliability of the breathalyzer machine. While the breathalyzer has gained universal acceptance such that proof of its scientific integrity need not be proven each time test results are offered into evidence, such test results may of course be attacked on the grounds that the proper operating procedures were not followed or that the particular machine was not operating properly (People v Gower, 42 NY2d 117, 121). In this case, defendant’s challenge to the reliability of the particular machine was completely frustrated by the trial court’s denial of discovery of the calibration test results of the machine, particularly in light of the fact that this particular machine had not been calibrated for over seven months prior to its use on defendant.* Thus, it cannot be said that it was harmless error to deprive defendant of his legitimate challenge to the reliability of the breathalyzer machine with regard to the count based solely on the test result of that machine. An attack on the reliability of a particular breathalyzer machine clearly goes to the admissibility of the test result, not the weight to be accorded the test. Indeed, in People v Gower, (supra), the Court of Appeals stated with regard to the foundation necessary for breathalyzer test results that, “[biased on a wealth of practical experience greater dependence can now properly be placed on according full opportunity, through pretrial discovery and other means, to test and challenge the probative worth of the [breathalyzer] evidence” (id., at p 121 [emphasis added]). K With regard to the conviction for operating a motor vehicle while in an intoxicated condition, testimony of witnesses would be relevant, along with the chemical test result, to prove intoxication. In the instant case, the error in denying discovery was prejudicial despite the additional evidence of intoxication. A chemical test result is highly probative evidence and it is impossible to assess the effect of such evidence on the jury as opposed to the weight given to the other evidence (id., at p 122). Therefore, the conviction on the second count should also be reversed. People v Farrell (87 AD2d 690, affd 58 NY2d 637) and People v Brockum (88 AD2d 697) do not require a different result since they deal with the admissibility of chemical test results and not the denial of discovery which prevents a defendant from challenging the reliability and accuracy of the machine. For the above reasons, the judgment of conviction must be reversed, t Resolution of the appeal on the above-discussed ground renders unnecessary the determination of the other issues raised by defendant. ¶ Judgment reversed, on the law, and matter remitted to County Court of Tompkins County for a new trial. Mahoney, P. J., Weiss and Mikoll, JJ., concur; Yesawich, Jr., J., concurs in part and dissents in part in the following memorandum; Kane, J., dissents and votes to affirm in a separate memorandum.
Defendant urges that the fact that the breathalyzer had not been calibrated for more than six months renders the test result invalid for failure of proper foundation, citing to People v Todd (79 Misc 2d 630, revd on other grounds 38 NY2d 755). However, defendant failed to introduce any statutes, regulations or expert documentary or testimonial evidence that a breathalyzer must be calibrated every six months in order to insure reliability.