Admissibility of Your Portable Breath Test Taken at the Scene of Your DWI Arrest at a New York Criminal Trial

In New York State from Manhattan and Brooklyn to Yonkers and White Plains, drunk driving, driving while intoxicated, DWI, DUI, or any way you want to describe it, VTL 1192 is an extremely serious offense. Simply, not only is a violation of New York State Vehicle and Traffic Law section 1192 a criminal offense, but a conviction will result in the suspension or revocation of your license, fines and a risk of probation or jail. Even without the public stigma associated with this crime, the collateral consequences are significant both to your career and within your community. Because of the grave consequences resulting from an arrest or conviction for an section of VTL 1192, consulting with and retaining an experienced New York State or New York City DWI attorney as well as having a general understanding of New York DWI and DUI law is critical. This blog entry will provide you with a general understanding of one of the many issues that arise in a DWI case. That is, whether or not the field sobriety test / portable breath test you agreed to take at the scene of your arrest for DWI can be used against you at trial.

In People v. Santiago, 1886/2012 NYLJ 1202712884211, at *1 (Sup., Decided December 11, 2014), a Bronx County Supreme Court Justice held that while a field sobriety test / portable breath test may be admissible at trial against the accused, faulty administration of the field sobriety test / portable breath test prevents its use by prosecutors. The magnitude of such a decision cannot be understated. If, for example, a defendant refuses to “blow” at the precinct and the police do not have a BAC to provide prosecutors, the law may allow the “blow” you provided at the scene to be admissible and, therefore, to bolster the criminal case you face.

The law on the issue of admissibility for portable breath tests have evolved over the years. “[S]cientific knowledge has advanced dramatically, leading to significant technological changes in breath-alcohol detection devices. The scientific methods incorporated in modern-day breath taking instruments are substantially different from the earlier generations of these devices…” People v. Boscic, 15 NY3d 494, 498 (2010). In fact, the Court of Appeals in Boscic went so far as to find that rejected a required per se six month periodic testing period for these devices.

Now that we know they can be admissible, when or under what circumstances can the police and prosecutors introduce evidence of your field sobriety test on the portable breath test? The follow is the framework and as addressed in Santiago:

“Under the foundation test set out in People v. Hargobind, 34 Misc3d 1237[A], the prosecution is required to establish all of the following: 1) that the device has been tested, producing a reference standard, within a reasonable time period prior to the test on the defendant; 2) that the device was calibrated and working properly on the day in question; 3) that these preparatory procedures, and the actual test on the defendant, were conducted by properly trained persons; and 4) that the field test on the defendant was conducted in conditions that would lead to scientifically reliable results, including, but not limited to, that the defendant was observed for at least fifteen to twenty minutes prior to the test to ensure that he had not ingested alcohol or had other contaminants in his mouth which would skew the test results. The waiting period has been described by at least one expert as the ‘cornerstone’ of chemical breath testing. Moreover, as has been observed, the conditions under which an officer performs a field test at the scene of a car stop are fraught with potential for error and must be carefully scrutinized. Distractions on a road or public street, the environment or weather, the degree of lighting and various other factors tend to complicate the administration of the test and undercut its reliability. See, People v. Aliaj, 36 Misc3d 682, 693 (Sup Ct NY Co 2012).”

In Santiago, the Court, using the above test, rejected the prosecution’s attempt to introduce the breathe sample or BAC recorded by the portable breath test because the administering officer to wait the minimum fifteen to twenty minute threshold.

Although the protocol and procedure is clear, don’t merely assume that your portable breath tests are admissible in court. Merely accepting such recordings can be devastating to your case. Educate yourself on the standards required by the courts and consult with your own New York DWI lawyer or DUI attorney.

Saland Law PC is a New York City based DWI defense and criminal defense law firm representing clients in New York City as well Westchester, Rockland and Putnam Counties. Established by two former Manhattan prosecutors who served in the DWI Units of the New York County District Attorney’s Office, Saland Law PC maintains the NewYorkCriminalLawyerBlog.Com and other resources address New York DWI law and crimes. To learn more about New York DWI crimes, punishment, defense, procedures and collateral consequences, the New York DWI and DUI Defense section of is available for review.



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