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Portable Breath Tests and Your Right to Counsel in a New York DWI Arrest

When someone is charged with a DWI in New York City, or elsewhere in the state such as Westchester County or Rockland County, there are numerous complex issues that routinely arise. In every such DUI case, it is critical that your DWI lawyer examine and potentially challenge everything from the initial basis for the police pulling over the vehicle and the breathalyzer test or tests to the blood-alcohol content (BAC reading) and more. While car stops are routine in daily life even if not for a VTL 1192 drunk driving crime – it’s hard to imagine driving for an hour on a busy road and not seeing a car pulled over by a police officer for one reason or another. No matter the offense charged, NY vehicular crimes can be surprisingly complex from a legal point of view. One of the issues in this area of the criminal justice system that often arises is when you, an accused, have a right to counsel before submitting to a “chemical test” and what type of test falls under this umbrella.

In the recent Bronx Criminal Court case of  People v. F.B.,  the judge was faced with exactly this kind of detailed analysis of what one might consider a fairly routine DWI stop. Before addressing the Court’s review, its important to recognize that any stop of a motor vehicle is a “seizure” which has Constitutional implications under the Fourth Amendment even if it’s just a quick stop for a busted taillight or speeding. In order for a traffic stop to be justified, the police officer must have probable cause to believe that a traffic infraction transpired, reasonable cause to believe that the driver has committed, is committing or is about to commit a crime, or some other valid public safety concern. Essentially, if a police officer pulls over a vehicle because they just have a “hunch” or some curiosity about the vehicle or the driver, everything that results from that stop is unusable and any case should be dismissed.

Taking this a step further, once the police officer pulls the car over, the Court must then look at law enforcement’s basis for arresting the defendant, which requires probable cause to believe that a crime has been committed. In relevant part for the issue presented here, the defendant in People v. F.B. submitted to a PBT or Portable Breath Test which resulted in a BAC reading of .15, well over the legal limit of .08. Ultimately, the defendant was also given a different kind of and more formal breath test back at the precinct.

With the above in mind, the defendant’s attorney challenged whether the accused invoked his right to counsel before submitting to a “chemical test” or breath test to measure his BAC. It certainly was not lost on the attorney that a person arrested for DWI in New York has a limited right to consult with a lawyer before deciding whether to agree to a “chemical test” of their BAC. Here, the defendant apparently both clearly and unequivocally referenced and asked for an attorney multiple times before submitting to the PBT in the field. However, the Court pointed out that a PBT is not a “chemical test” since that phrase is used to describe a test on an instrument other than a PBT such as a Breathlyzer, DataMaster, Intoxilyzer, etc. These latter tests are ones administered at a precinct in a controlled setting as opposed to a PBT which is considered merely a “preliminary breath test” and often utilized at the scene of an alleged crime. Ultimately, as interpreted and ruled by the Court, there is essentially no meaningful right to counsel before being given (or refusing to take) a Portable Breath Test after being pulled over in New York.

Only touching this issue without addressing the consequences of a refusal where your privilege to drive in New York can be revoked even if you are ultimately acquitted of drunk driving, know that there are a myriad of issues that can arise in any DWI case. No matter the allegation, a little bit of education and foresight can mean the difference between protecting your rights and walking away with minimal consequences or finding yourself saddled with a criminal record and a suspended or revoked license to drive.

To learn more about New York DWI arrests, follow the provided links.

Crotty Saland PC is a New York DUI defense law firm founded by two former Manhattan prosecutors who served in the DWI Unit.

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