Not that you’ll find many sympathetic ears to listen to this complaint, but if you are accused of or arrested for a New York DWI or DUI crime, things continue to lean in favor of local prosecutors. Forget the fact that those in government are considering lowering the legal limit for a drunk driving crime to .05 or .06 (I have heard rumors of both), New York courts are making it easier for the police and Assistant District Attorney’s to use previously inadmissible evidence of driving while intoxicated at trial over the objection of New York criminal defense attorneys and New York DWI lawyers. One such example that both you and your criminal lawyer or DWI attorney need to be aware of is the potential admissibility of a portable breath test (PBT) results taken at the time and place of your arrest. This evidence (it can be terribly damning) can and will be a tool for prosecutors to achieve convictions for crimes including VTL 1192.3.
In People v. Carlos Palencia, 1490N-12, NYLJ 1202604831232, at *1 (Co., NA, Decided June 10, 2013), the court addressed the admissibility of the PBT used at the scene of an arrest as proof in People’s direct case. There the defendant was charged with VTL 1192.2. While courts are mixed, many say the PBT can solely be used to establish probable cause for a DUI arrest while other courts are permitting its use as direct evidence of intoxication assuming the proper legal foundation is established first. In an interesting twist, however, the prosecution sought to introduce the PBT results in Palencia for a different reason than those described above. That is, Mr. Palencia did not “blow” into an intoxilyzer (breathylizer) and the data was not needed to established he violated VTL 1192.2 by having a BAC .08 or higher. Instead, the People sought to introduce the evidence as to the defendant’s state of mind. More clearly (in non legal jargon), it was the prosecution’s position that the fact that the defendant knew what he blew at the scene should be used to established the defendant’s state of mind (guilty knowledge) when he refused to provide a legal sample back at the police station. Because he knew he was intoxicated at time one, he refused to blow (according to prosecutors) at time two.
In coming to a decision on the admissibility of the PBT, the court ruled as follows:
“In People v. Aliaj, 36 Misc.3d 682, 946 N.Y.S.2d 430 (New York Co. 2012), the Court specifically noted that there is a need for Appellate guidance on this issue and that trial Courts have been struggling with it for years. The Court went on to note that there is no clear modern rule which governs the standards for determining whether or under what circumstances PBT’s administered with today’s technology and protocols are admissible at trial.
In Aliaj, the Court found that in order to admit the PBT results, the required foundation, in addition to the test’s inclusion on the conforming list, had to include the following: that the condition of the operator had been observed for 15-20 minutes; the qualifications of the test giver; the reliability of the testing device; the manner in which the test was administered; and, the record of the test procedure. Id. at 693.
In the case at bar, in order for the Court to allow the test results to be admitted into evidence to show Defendant’s state of mind, the People will have to prove, at the very least, the reliability of the device by confirming that it is on the conforming list; that the test was administered properly; that the test was administered by a properly qualified administrator; and that the Defendant had knowledge that the test results showed a presence of alcohol.”
Ultimately, the court permitted the introduction of the PBT and its damning evidence. Would the People’s inability to establish the proper foundation bar this evidence? Likely. Would the fact that the evidence would prejudice the defendant keep it from being introduced? Unlikely.
Keep in mind that every case is unique, but the legal tools are available for prosecutors to seek admission of PBTs at a DWI or DUI trial. Do yourself a favor…if you are arrested for VTL 1192.2, VTL 1192.3 or any drunk driving crime, think before you speak, be careful about making an admission and do not be afraid to ask to consult with a DWI lawyer before agreeing to submit to any chemical test. Your rights are there to exercise.
To learn about New York DWI laws and DUI crimes, Hardship and Refusal Hearings or other areas of the New York Vehicle and Traffic Law, read through the links above and below.
Crotty Saland PC is a New York criminal and DWI defense firm. Founded by two former Manhattan prosecutors who both served in the DWI Unit, Crotty Saland PC represents clients in DUI and DWI arrests throughout the New York City region.