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New York video recording of the test

This is a proceeding wherein the defendant is charged with one count each of Operating a Motor Vehicle While Intoxicated pursuant to VTL §1192.3 and Operating a Motor Vehicle While Impaired pursuant to VTL §1192.1. The defense has made a motion to preclude the People from introducing the result of the SD-2 Intoxilyzer portable breath alcohol test administered to the defendant. A response was filed by the People.

The court grants the defense’s motion to preclude introduction of evidence relating to the portable breath alcohol test.

Relying on the statutory scheme and the Court of Appeals’ ruling in the case of People v. Thomas, the court in the case of People v. Reed held that field test results cannot be introduced as evidence in chief of defendant’s intoxication also similar to the rulings in the cases of People v MacDonald and People v Wright. Pursuant to VTL §1194, a field test serves to determine probable cause for an arrest and it is the chemical breath test that may be admitted at trial as held in the landmark cases of People v Reed, People v Schook, People v Thomas and People v Wright. The ruling in the case of People v Hampe which has been relied upon is inapplicable to the instant facts given that the test in that case involved a chemical test given at the precinct. A field test was not at issue in that proceeding.

The cases of People v Reed and People v Boscic held that the statute differentiates between a preliminary field test and a chemical breath test, which is admissible at trial with the laying of a proper foundation. According to VTL §1194 (2) (a) and (b), the initial breath test and the subsequent chemical test serve different purposes, the first determines if alcohol was consumed and the second determines the level of alcohol consumed. The criminal 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 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.

The court in the case of People v Reed, held that a breath sample shall be collected within two hours of the time of arrest or within two hours of a positive breath alcohol screening test. Further, the court requires that the driver be under continuous observation for 15 minutes prior to a chemical test, that a system purge immediately must precede both the test and analysis of the reference sample and that analysis of a reference standard be made and recorded immediately prior to or following the breath test.

The portable SD-2 Intoxilyzer alcohol breath test is used as a screening tool in the field to determine if the defendant has consumed alcohol as was also done in the cases of People v Reed, People v Schook and People v O’Reilly. The court held in the cases of People v Harper, People v Thomas, Smith v Commissioner of Motor Vehicles and People v Schook that a roadside Alco-Sensor screening test is sufficiently reliable for use in determining the presence of alcohol on a pass/fail basis, if properly administered an Alco-Sensor test can help establish probable cause for the arrest of a DWI suspect.

A portable alcohol screening devise may be used for a field test to determine probable cause for an arrest and its use in determining blood alcohol content is proper for that purpose given its approval, but is not admissible at trial in a DWAI prosecution because the test results are not sufficiently reliable to prove intoxication, i.e., the blood alcohol content reading. As noted in Reed, the Department of Health rules and regulations themselves recognize the difference between preliminary screening test and chemical test in accordance with 10 N.Y.C.R.R. 59.4 (b) (4) (xxiii)).

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.

If you want to know more, contact us at Stephen Bilkis & Associates. Call our toll free number or visit our firm for consultations. We will gladly answer your queries. We have a number of New York Criminal Attorneys readily available for your legal concerns. New York DWI Attorneys also known as New York Driving While Intoxicated Attorneys at our firm will best represent you in this field of litigation. Having successfully represented numerous cases involving drunk driving, our firm has gained vast knowledge and expertise in this issue. At our firm, you are assured of quality legal service from the most hardworking, exceedingly competent, exceptionally skilled and highly trained individuals. Our teams work beyond best and see to it that justice is served. Let us make justice happen. Help us help you.

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