Can Prosecutors in New York Use the BAC Breath Test Taken at the Scene of a DWI Arrest Against You at Trial

In New York City it is routine that an arrest for DWI, DUI or driving while intoxicated is accompanied by an on the scene intoxilyzer or BAC breath test. In other words, before you ever meet with your criminal lawyer or are handcuffed in the back of a police car, officers with the NYPD will administer an intoxilyzer test in the field. Although prosecutors, and DWI lawyers, often cite the results of this test to their advantage when possible, the legal question is as follows:

Can a breathilyzer or intoxilyzer test result be taken at the scene of a DWI arrest be used against an individual charged with a New York DUI crime such as VTL 1192.2 (Driving While Intoxicated) or VTL 1192.2-a (Aggravated Driving While Intoxicated)?

Although the above answer is well established and has been reaffirmed by many courts throughout the state, prosecutors in New York City – Manhattan, Brooklyn, Queens and the Bronx – still attempt to create “new” law and push the legal envelope in all sorts of criminal matters (for better or for worse). Fortunately for one particular defendant, a New York City Criminal Court Judge was having none of it. In People v. Santana, 2010NY044345, NYLJ 1202495788641, Judge ShawnDya L. Simpson ruled against the prosecution after a New York County Assistant District Attorney attempted to introduce this field test result at trial as proof of intoxication. Simply put, the court, held that “field test results cannot be introduced as evidence in chief of defendant’s intoxication.” People v. Reed, 5 Misc. 3d 1032A (Bx. Co., Sup. Ct. 2004). In non-legal terms, not admissible as “evidence in chief” means that the field test result, as opposed to the intoxilyzer taken at the precinct subsequent to arrest, cannot be used by prosecutors in their direct case through their witnesses.

Jude Simpson further noted that:

“According to VTL §1194 (2) (a) and (b), the initial breath test and the subsequent chemical test serve difference purposes, the first determines if alcohol was consumed and the second determines the level of alcohol consumed. The statute does not provide that a field test is admissible as evidence in chief of defendant’s intoxication and no such language will be read into the statute by this court. That the Intoxilyzer S-D2 [the portable field test intoxylizer] is listed as a devise approved to test blood alcohol content does not establish that the devise is admissible at trial to prove the defendant was legally intoxicated.”

Why Field Intoxilyzer Not Admissible

The test in the field is not admissible in a case-in-chief for a few reasons. First, unlike an intoxilyzer examination at a precinct, tests conducted in the field are not videotaped for proof that the police administered the exam properly. Even assuming it was done correctly, for the people to introduce an intoxilyzer, the evidence must establish that the devise was properly calibrated within approximately six months of its use. See People v. Boscic, (15 N.Y.3d 494). Lastly, although not deservedly so, there is something in our set of laws called “due process.” To admit this test result without advising the accused that it can and will be used against them at trial, would circumvent these rights that are the critical to the well being of our legal system.

Purpose & Use of the Field Intoxilyzer

Merely because a portable or field variety breathilyzer or intoxilyzer is not admissible at trial during the prosecution’s case in chief, does not mean that the same has no value or is not relevant. In fact, as further recognized by the court, the test in the field is significant. Although the test results are not sufficiently reliable to establish intoxication before a jury or judge at trial, these results are part of and can even establish a police officer’s probable cause to make a DWI arrest in New York City or anywhere else in New York State where the test is administered. In practical terms, if the field intoxilyzer is administered and the accused “blows” a .11, then the recording would form the basis of an arrest for Driving While Intoxicated pursuant to VTL 1192.2. Obviously, your attorney will challenge the basis of the stop of your vehicle and not merely concede this equally (if not even greater) factor in determining whether your arrest for DWI was legally permissible.

For extensive information about DWI laws in New York City as well as New York State, please review the detailed information on the DWI & DUI section of the Saland Law PC website. Additional materials from DWI case law to cases in the news can be found on the New York Criminal Lawyer Blog.

Established by two former Manhattan prosecutors, the New York criminal lawyers at Saland Law PC represent those accused of DWI and drunk driving crimes throughout the New York City region.

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