Preliminary Breath Tests and Your 4th Amendment Rights

It is officially the end of summer, and the beginning of Fall here in Ithaca, NY. Last week we took out the air conditioners (the ones you put in old house windows), and to me that signaled the big change. The shift to shorter days and cooler nights.

It is common for people arrested for DWI in New York to confuse the different types of breath tests they were given. When people call me they have usually done (performed) so many tests, that the night or early morning is a blur. The breath test done by the roadside is called a PBT (preliminary breath test) aka alco-sensor test, and the one back at the police station or Trooper barracks is called "the chemical test." The results of PBTs are inadmissible in New York State Courts, and there is only a fine if you refuse to take it. They are considered unreliable because the chemicals within the handheld device wear out over time. On the other hand, the results of a chemical test are admissible in Court and there are steep penalties and a one year license revocation for refusals to submit to testing. Chemical tests use numbered ampoules of chemical solutions which are disposed of after each and every test.

When the police obtain a blood, breath, or urine sample from you it is considered a "search" under the Fourth Amendment. See the U.S. Supreme Court case, Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 402.The Fourth Amendment to the Constitution states that you shall be free from unreasonable search and seizure. Under New York DWI law it is arguable that "Before" police or law enforcement can request that you take a PBT (sample of breath at roadside) they must first have probable cause (reasonable cause) that you are intoxicated.

In People v. Brockum, 88 A.D. 2d 697, 451 N.Y.S. 2d 326, 327 (a New York State 3rd Department 1982 case) the defendant asserted that the preliminary (alco-sensor) testing of his breath in the absence of probable cause to believe (in the officer's opinion) that his ability to drive was impaired by alcohol constituted an unreasonable search in violation of his Fourth Amendment rights. In rejecting the defendant’s claim, the Appellate Division, Third Department, held that there was probable cause under the circumstances:

The record amply demonstrates that the police officer had reasonable grounds to suspect defendant’s intoxication. The vehicle swerved into the opposite lane forcing the police car off the road and was pursued for about one mile by the police car with flashing lights before stopping. These actions constituted sufficient factors from which the officer could reasonably infer that defendant was driving under the influence of alcohol. At the very minimum, the stop was justified. Once stopped, defendant exhibited watery and bloodshot eyes, emanated an odor of alcohol from both his person and vehicle, and admitted that he had a long day at work and had a few beers. In these prevailing circumstances, there was further probable cause for the officer to believe defendant to be driving under the influence of alcohol justifying the breath test.

Similarly, in People v. Graser, 90 Misd. 2d 219, 393 N.Y.S. 2d 1009, 1114 to 15 (Amherst Just. Ct. 1977) the Justice Court held that:

If the officer after stopping the defendant, has reasonable cause (probable cause) to believe that defendant has committed the crime of driving while intoxicated, he can arrest him, and make a search and seizure of the defendant’s breath after arresting him, by demanding a sample of the breath by means of a breath screening test. It would be a search and seizure, incident to a lawful arrest, and not constitutionally proscribed.

If the police officer demands that the motorist give him a breath sample before arresting him, but after having probable cause to make the arrest, such search and seizure also would not be proscribed merely because the police officer is searching for evidence of a particular crime, committed- to wit driving while intoxicated.

Which kinda brings me round robin on this blog post, the government needs PC (probable cause) for an arrest, they need PC to take seize a sample of your body fluids or breath, and they need PC to charge you with the crime of DWI. They can not arguably use their tests first to establish PC. That would be like putting the proverbial cart before the horse so to speak.

These are the fights we must wage in order to preserve and uphold our Constitutional rights. Sometimes in defending my clients I feel like David going after Goliath (the government, the police) with my slingshot. I must utilize a well thought out, and strategic plan of attack to focus and aim for vulnerable areas. The advantage always goes to the better prepared opponent.