New York DWI Arrests & Trials: New York City Judge Allows Portable Breath Tests Results at Drunk Driving (DUI)Trial

Facing a Drunk Driving, DUI or DWI criminal arrest in New York can be an extremely frightening experience for any individual especially for an accused who does not have an experienced New York DWI lawyer at their side. Whether one is arrested and charged with Driving While Intoxicated in Manhattan, Queens, Brooklyn, the Bronx or out in the counties of Westchester or Rockland, the consequences of a conviction can be severe and life-changing. Therefore, when facing any of the DWI crimes found under NY Vehicle and Traffic Law (VTL) 1192, it is extremely important to understand your legal rights so that you can mount the best possible defense. In this blog post I want to explore whether a New York court will allow the prosecution to utilize the results from a portable breathalyzer or intoxilyzer administered by the arresting officer during an initial stop at a DWI trial.

A recently decided New York County (Manhattan) criminal case, took up this exact legal issue. In People v. Jones, 2010NY061507, NYLJ 1202504258080, at *1 (Crim., NY Decided July 18, 2011) the defendant, Kareem Jones, was tried before a jury on charges of Driving While Intoxicated (DWI) pursuant to NY VTL1192(3) (also called “Common Law DWI”) and Driving While Ability Impaired (DWAI) pursuant to NY VTL 1192(1). As you might expect, one is guilty of DWI when they operate a motor vehicle in an intoxicated condition. If convicted the defendant can face up to one year in jail, a suspension of their license, fines, and probation for three years. Further, the law requires that an interlock device be placed on the convicted’s vehicle. On the other hand, one is guilty of DWAI if they operate a motor vehicle while impaired by the consumption of alcohol. DWAI is an infraction and is often charged as a lesser offense of the other DWI crimes listed under VTL 1192.

In this case, prior to the commencement of trial, the People moved to introduce evidence that at the time of his arrest, Mr. Jones had .09 of one percent by weight of alcohol in his blood (the legal limit is .08). The defendant objected to the introduction of the evidence because it was established by a “portable breath test” (PBT) administered by the officer at the scene (in the street as opposed to at the precinct). Based on some relevant case law, the defendant argued that “portable breath tests,” as opposed to stationary breathalyzer tests maintained at police precinct houses, are not admissible evidence and are inherently unreliable. Furthermore, if the prosecution wanted to admit the results, the defendant argued that they had to submit expert testimony showing the reliability of the PBT. Obviously, the crux of the People’s case was based on the blood alcohol content (BAC) reading; if the evidence is not admissible or deemed unreliable then the defendant could “beat the rap” or face only the lesser charge of DWAI.

Unfortunately for the defendant, the Court ruled against the him stating: “the results of an otherwise reliable chemical test are not rendered inadmissible at an intoxicated-driving trial just because the device used to perform the test is capable of being moved.” The court went on to explain that the portability of a breath testing device is not a factor relevant to the admissibility of the results. Rather, evidence of a defendant’s BAC is admissible if obtained by a chemical test that meet the following two foundational requirements for admissibility: (i) that the device, when operated correctly, ordinarily produces scientifically reliable results and (ii) that the device was in good working condition and was properly used.

The court went on to explain that the type of PBT utilized by the arresting officer was an accepted scientific device. The US Department of Transportation/National Highway Traffic Safety Administration (NHTSA) lists the PBT on the Conforming Products List of Evidential Breath Alcohol Measurement Devices, and the device was approved by the Commissioner of Health for use in New York. Therefore, there was no need for expert testimony to affirm the reliability of this scientifically approved device. Moreover, the People offered evidence (two certified maintenance reports) demonstrating that the PBT was properly calibrated and in working order. Also, the People established that the officer who administered the test was qualified to properly operate the test.

In short, People v. Jones is a very dangerous case for New York DWI lawyers and DUI defendants. The case very clearly illustrates that New York criminal courts will allow the prosecution to introduce evidence of the defendant’s blood alcohol content even when obtained by a portable breath test device by an officer at the scene. This scientific data, as opposed to just an officer’s observations is far more difficult to overcome. Should you, an individual arrested for DWI or DUI “blow” at the scene of an arrest? The answer to that questions is well beyond the four corners of this blog entry.

For a wealth of relevant and practical information about New York DWI laws and DWI crimes ranging for statutes, sentencing guidelines and collateral consequences, follow the links above. Further information is also available below through

The two founding New York DWI lawyers at Saland Law PC served as Manhattan prosecutors prior to establishing the criminal defense firm. The New York criminal lawyers at Saland Law PC represent individuals arrested for DWI, DUI and Drunk Driving arrests throughout New York City and beyond.

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