Is A Field Breathalyzer Test Administered During A Traffic Stop Admissible In NY Criminal Courts?
If you have the unfortunate experience of being pulled over by a police officer for suspicion of operating a motor vehicle while intoxicated, your sobriety will be assessed at the scene of the stop. At the scene, the officer may administer a Breathalyzer test as part of the field sobriety tests. The field Breathalyzer test is a small portable Breathalyzer that tests the presence of alcohol in your system but does not provide an exact percentage of the driver's blood alcohol content (BAC). It is merely a screening device that provides the officer with probable cause for the stop and to administer a chemical Breathalyzer test at the police station in the event the driver is arrested. Unlike the portable field Breathalyzer test, the chemical Breathalyzer test administered at the police station provides an exact reading of the driver's blood alcohol content. The results of the chemical Breathalyzer test gives the District Attorney's Office the ammunition it needs to charge you with a DWI related offense. Notwithstanding the driver's failure of the field Breathalyzer test, once at the station, the driver may refuse to take the chemical Breathalyzer test. Consequently, the question becomes, if the results of the field Breathalyzer test shows that the driver is intoxicated and the driver refuses to take the chemical Breathalyzer test at the police station can the results of the field Breathalyzer test be used against him in court?
Historically, the answer to this question was an emphatic no. A fair majority of courts have ruled that field breath tests are not admissible in DWI prosecutions. See Gerstenzang & Sills, Handling the DWI Case in New York, ยง 7:8 (2011-2012 Ed.) ("Evidence concerning the administration of an Alco-Sensor test, as well as evidence of the actual Alco-Sensor test results, is clearly inadmissible at trial.") (citing People v. Thomas, supra). These courts have held that field breath tests may be used to establish probable cause for the stop by determining the presence of alcohol and not to prove the defendant's intoxication at the time of the stop.
In People v. Thomas, 509 N.Y.S.2d 668 (4th Dept. 1986), the seminal case on this matter, the court held against the admissibility of the results of an Alco-Sensor test (field Breathalyzer test) because the state did not lay a proper foundation demonstrating the reliability of the test. The court, therefore, did not close the door completely shut on the admissibility of test results from a field Breathalyzer so long as the People show that the test is reliable. The majority of courts after Thomas continue to hold steadfastly that the test is unreliable and therefore, inadmissible. People v. MacDonald, 641 N.Y.S.2d 749 (3d Dept. 1996); People v. Reed, 799 N.Y.S.2d 163 (Table) (Sup. Ct. Bronx Co. 2004); People v. Santana, 930 N.Y.S.2d 176 (Table) (Crim. Ct. NY Co. 2011).
The latest Kings County (Brooklyn, NY) court ruling suggests a shift from precedent. In People v. Hargobind, NYLJ 1202544857362, *1 (Crim., KI, Decided February 29, 2012), the court held that test results from a field breathalyzer device does not automatically render the results inadmissible. The court followed the rationale in Thomas by holding that so long as the People lay a foundation for the reliability of the portable breathalyzer it will be admissible to show that the defendant was intoxicated at the time of the traffic stop. The Hargobind court disregarded the precedents set after Thomas because those decisions pre-date the inclusion of field breath analysis instruments on the New York State Department of Health's Conforming Products List of Evidential Breath Alcohol Measurement Devices. Inclusion of a breath analysis instrument on this list is sufficient evidence to establish the reliability of such a device. In People v. Lent, 908 N.Y.S.2d 804 (App. Term, 2d Dept. 2010), the court held that the reliability of breath analysis instruments approved by the New York State Department of Health is no longer open to question. Therefore, if a portable Breathalyzer device is on the approved list by the N.Y.S. Commissioner of Health, its scientific reliability is incontestable.
The Hargobind court illustrated the means for which the People may lay a foundation for the admissibility of the results of a portable Breathalyzer test. The People must show the following: 1) the device had been tested, produced a referenced standard, within a reasonable period prior to Defendant's test; 2) that the device had been calibrated; that the device was properly functioning on the day the test was administered; 3) the test was administered properly; 4) the device was properly purged prior to defendant's test, by a qualified administrator; 5) and that Defendant was observed for at least 15 minutes prior to the test to ensure that the defendant had not ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked, or have anything in his/her mouth.
In conclusion, the results of a portable field Breathalyzer device may be admissible in New York if the People lay the foundation for its reliability as illustrated in the People v. Hargobind. However, one must keep in mind that a refusal to take a chemical Breathalyzer test at the police station will at the very least result in the suspensions of their driver's license and civil penalties.
Historically, the answer to this question was an emphatic no. A fair majority of courts have ruled that field breath tests are not admissible in DWI prosecutions. See Gerstenzang & Sills, Handling the DWI Case in New York, ยง 7:8 (2011-2012 Ed.) ("Evidence concerning the administration of an Alco-Sensor test, as well as evidence of the actual Alco-Sensor test results, is clearly inadmissible at trial.") (citing People v. Thomas, supra). These courts have held that field breath tests may be used to establish probable cause for the stop by determining the presence of alcohol and not to prove the defendant's intoxication at the time of the stop.
In People v. Thomas, 509 N.Y.S.2d 668 (4th Dept. 1986), the seminal case on this matter, the court held against the admissibility of the results of an Alco-Sensor test (field Breathalyzer test) because the state did not lay a proper foundation demonstrating the reliability of the test. The court, therefore, did not close the door completely shut on the admissibility of test results from a field Breathalyzer so long as the People show that the test is reliable. The majority of courts after Thomas continue to hold steadfastly that the test is unreliable and therefore, inadmissible. People v. MacDonald, 641 N.Y.S.2d 749 (3d Dept. 1996); People v. Reed, 799 N.Y.S.2d 163 (Table) (Sup. Ct. Bronx Co. 2004); People v. Santana, 930 N.Y.S.2d 176 (Table) (Crim. Ct. NY Co. 2011).
The latest Kings County (Brooklyn, NY) court ruling suggests a shift from precedent. In People v. Hargobind, NYLJ 1202544857362, *1 (Crim., KI, Decided February 29, 2012), the court held that test results from a field breathalyzer device does not automatically render the results inadmissible. The court followed the rationale in Thomas by holding that so long as the People lay a foundation for the reliability of the portable breathalyzer it will be admissible to show that the defendant was intoxicated at the time of the traffic stop. The Hargobind court disregarded the precedents set after Thomas because those decisions pre-date the inclusion of field breath analysis instruments on the New York State Department of Health's Conforming Products List of Evidential Breath Alcohol Measurement Devices. Inclusion of a breath analysis instrument on this list is sufficient evidence to establish the reliability of such a device. In People v. Lent, 908 N.Y.S.2d 804 (App. Term, 2d Dept. 2010), the court held that the reliability of breath analysis instruments approved by the New York State Department of Health is no longer open to question. Therefore, if a portable Breathalyzer device is on the approved list by the N.Y.S. Commissioner of Health, its scientific reliability is incontestable.
The Hargobind court illustrated the means for which the People may lay a foundation for the admissibility of the results of a portable Breathalyzer test. The People must show the following: 1) the device had been tested, produced a referenced standard, within a reasonable period prior to Defendant's test; 2) that the device had been calibrated; that the device was properly functioning on the day the test was administered; 3) the test was administered properly; 4) the device was properly purged prior to defendant's test, by a qualified administrator; 5) and that Defendant was observed for at least 15 minutes prior to the test to ensure that the defendant had not ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked, or have anything in his/her mouth.
In conclusion, the results of a portable field Breathalyzer device may be admissible in New York if the People lay the foundation for its reliability as illustrated in the People v. Hargobind. However, one must keep in mind that a refusal to take a chemical Breathalyzer test at the police station will at the very least result in the suspensions of their driver's license and civil penalties.
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