Monday, July 25, 2011

DWI Appeal - New York Court Says PBT Admissible

In People of New York v. Jones, --- N.Y.S.2d ----, 2011 WL 2764207 (N.Y.City Crim.Ct.), 2011 N.Y. Slip Op. 21250, the prosecution filed a motion in limine to introduce the PBT result of 0.09 Brac into evidence at trial to establish guilt. The trial court allowed the result, and the defendant was convicted. On appeal, the defendant claimed that the PBT was inadmissible because: 1) portable devices had previously been disapproved by New York courts @) the FST was not shown to be reliable and 3) portable breath tests are only considered valid as screening devices and not as full chemical tests.

Rejecting all of the above, the appeals court held that the Alco FST was admissible because 1) it was on the NHTSA Conforming Products List and therefore all such devices were deemed 'approved' under New York's breath testing regulations; 2) device was on Conforming Products List of Evidential Breath Alcohol Measurement Devices, and was approved for both "Mobile" and "Nonmobile" use; 3) inclusion of device on Conforming Products List of Evidential Breath Alcohol Measurement Devices in itself establishes general acceptance of reliability and accuracy of its results and therefore dispenses with need to present foundational evidence thereof through expert testimony; 4) NHTSA has approved the Alcosensor FST for not just screening, but as an evidential breath testing device.

Of additional significance was that the court held that the fact that the officer who administered blood alcohol test may not have maintained continuous observation of defendant for 15 minutes prior to test did not render its results inadmissible, but went only to weight to be afforded the results.

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