The court notes that the reliability of a field test is compromised precisely because it’s done in the field, generally under less stable condition than that of the precinct. In states where field test are admitted a visual recording of the officer carrying out the test is provided to establish the reliability of that evidence. Similarly, in New York a video recording of the test is performed at the precinct to establish the reliability of its administration. In other states, where a portable breath test is done in the field it may be admitted in the People’s case in chief because it is video recorded. Where a portable test is admissible there should be mechanisms in place to support its reliability. In DWI cases legislators have sought to ensure that the defendant is convicted on reliable evidence.
The portable SD-2 Intoxilyzer test and the Intoxilyzer 5000EN are used differently. The latter is used at trial to establish the level of alcohol in the defendant’s body while the first is used in the field to determine if alcohol was consumed. Further, to admit the results of the Intoxilyzer 5000EN, which is conducted at the precinct, the People must show that the devise was properly calibrated, generally within about a six month period as held in People v Boscic. As the defense notes, machines are fallible and to admit the result of such equipment there must be evidence that the devise was regularly serviced and maintained to ensure its effective operability.
The court further notes that if portable breath tests done in the field were admissible in the People’s case in chief due process would require advising the driver that the result of such test could be used to convict. Vehicle and Traffic Law § 1194 (1) (b) provides that a driver cannot refuse a breath test and that a chemical test may be given if the initial breath test indicates that the driver has consumed alcohol. Further, if portable breath test were admissible at trial to prove the suspect was legally intoxicated there would be no cause to provide for a second test, if the first were sufficient. To admit evidence of a portable breath test in a case in chief would be to circumvent the law. For the People to be able to rely on a portable alcohol breath test conducted at the scene in the field to prove their case in chief there must be a different criminal statutory scheme than that in existence.
Consequently, the People may not admit the result of the portable breathalyzer test for DWAI conducted in this case.
Accordingly, the defendant’s motion to preclude evidence of the results of a portable breathalyzer test is granted.
Road accidents are mostly caused by drunk driving. It endangers not only the people inside the vehicles but includes bystanders or other road users. Thus, those responsible are held accountable for their acts of endangering the lives of other people on the road. Nonetheless, those “responsible” still have rights. The right penalty must be imposed in accordance with the violative act. It may or may not even go through trial proceedings.