New York Refusal and Common Law DWI Arrests: When Your BAC May be Admissible Against You Even After You Refuse to “Blow”

Section 1192 of the New York Vehicular and Traffic Law (VTL 1192 ) sets forth what constitutes Operating a Motor Vehicle While Under the Influence of Alcohol or, as most people call it, Drunk Driving, DWI or DUI. The consequences of a conviction can be life changing in terms or a criminal record, but also on one’s ability to drive a vehicle in New York. Having represented a variety of clients in all types of DWI arrests in New York City and Westchester County from Aggravated Driving While Intoxicated to Driving While Ability Impaired, I understand that often time the process may not always seem fair to defendant driver accused of criminal activity. That is, as a DWI criminal defense attorney I must ensure that the prosecution and police are upholding my client’s Constitutional rights rather than just eagerly seeking a conviction because some characteristic of intoxication is believed to be present. After all, you might have a legitimate reason for having bloodshot eyes, being unable to perform a finger to nose test or having the scent of what seems to be alcohol on your breath. It is crucial to ensure that fair and legitimate procedures are used when determining if you, as a driver or operator, was indeed intoxicated or under the influence.

On this very point, I’d like to discuss a recent criminal ruling out of Kings County [Brooklyn]. The case- People v. Andrei Hargobind, 2009KN024543, NYLJ 1202544857362, at *1 (Crim., KI, Decided February 29, 2012)- involved charges of VTL 1192(1) “Driving While Ability Impaired,” VTL 1192(3) “Driving While Intoxicated,” and VTL 1180(A) “Maximum Speed Limits.” The main issue was whether or not The People (prosecution) could introduce at trial the results of a “portable intoximeter breath test” given to the defendant at the time and place of his arrest (along the highway).

On the evening of the arrest, the Highway Patrol Officer conducted a field breath test using an Intoximeter Alco-Sensor FST device after pulling the defendant driver over to the side of the road. [The Intoximeter is a small portable breathalyzer that tests if you have alcohol in your system but does not give an exact percentage of BAC. It is not the same device or test that is later given at a precint.] The officer arrested the defendant based on the results and brought him back to the 78th Precinct. At the precinct the defendant refused to take a chemical breath test (a more reliable test that measures exact BAC).

Now, considering the severe consequences of a conviction of Driving While Intoxicated under VTL 1192, the accuracy of a portable Intoximeter device is critical if it will be the basis of a conviction. Also, while one is allowed by right to refuse a chemical breath test at the Precinct (as Mr. Harogobind did here) the defendant’s license is automatically revoked until they have their day in court (a “Refusal Hearing”). Interestingly, in this case the People wanted to utilize the portable Intoximeter test to establish the guilt of the defendant in addition to establishing the right of the officer to request a chemical test at the Precinct.

The defense argued, citing People v. Thomas, 121 A.D.2d 73, 509 N.Y.S.2d 668 (4th Dept. 1986), that the Court should not allow the results of the Intoximeter test to be used as evidence because the test was unreliable. Instead, the Intoxylizer or similar instrument at a precinct should be the sole chemical guage of intoxication. If none is available, then no chemical results should be admissible. The Thomas Court had found that the results of an Alco-Sensor test were inadmissible at trial to prove intoxication because the device was a portable unreliable device. In order for the results to be allowed as evidence of actual intoxication the People had to lay out a “proper foundation demonstrating the reliability of the test.” However, the Thomas Court ruled that the portable Intoximeter test could be used to establish probable cause as a basis for the arrest (i.e. that the officer had reasonable suspicion to believe that the defendant driver was driving while under the influence). The question still remained whether a portable breathalyzer test (PBT) could sustain a conviction of Driving While Intoxicated in New York (as opposed to merely establishing probable cause).

Though previous New York cases had decided that the results from a PBT were altogether inadmissible because it is capable of being moved, for example, the Hargobind Court here noted that the Commissioner of Health had recently included the Intoximeter on the approved list of devices. Due to this newer development and the guidelines pursuant to VTL 1194 (which lays out the circumstances under which blood alcohol testing is authorized and distinguishes field testing versus precinct testing) the Court allowed the trial to proceed on the condition that the People lay out a proper foundation for admission of the portable Intoximeter field test. Namely the People have to show that they observed the Defendant for 15 minutes (not drinking which would obviously affect the results), that the device was properly calibrated within six months (pre and post test), and that the other procedures and practices were followed pursuant to VTL 1194(2) (e.g. defendant was made aware of his right to refuse, warned of the consequences, and test/or refusal of, is videotaped).

The significance of this case, and others decided in the recent past, is evidence that the a Portable Breathalyzer test may be used in New York . If the People can lay a proper foundation for the device, NY criminal courts may allow the results to be admitted as evidence. For those accused of a “Refusal DWI” where no breath sample was given, this may be a double cures. Not only will your refusal trigger the revocation of your license, but the police and prosecutors may be able to circumvent your failure to provide a sample at the precinct.

To read and learn more about New York DWI laws, review the DWI section of our website and blogs or follow the links above and below. There you will not only find analysis of statutes, but practical reviews of laws and legal decisions.

The New York criminal defense attorneys and New York DWI lawyers at Saland Law PC represent clients charged with or arrested for DWI and DUI crimes throughout New York City, Westchester, Putnam and Rockland Counties. Prior to establishing the criminal defense firm, the two founding partners served as prosecutors in the Manhattan District Attorney’s Office.

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