Many of our clients who are charged in New York DWI cases are confused by the differences in the two tests that they may have been offered by the police. Very often, police officers will offer a portable breath test (PBT) to a motorist on the side of the road to help them determine whether there is probable cause to arrest someone for DWI. The refusal to take such test is punishable by a traffic infraction which can result in 2 points being assessed on your driver’s license. After a person is arrested for DWI they will be offered the opportunity to take a chemical test by either blood, breath or urine. The refusal to take that test is very serious and can result in a revocation of a person’s driver’s license for a minimum period of one year.
Prosecutors seeking to introduce scientific or technical evidence in a criminal trial have a burden to prove that the evidence is reliable enough to put before a jury. Jurors are not expected to be familiar with the technical specifications of alcohol and drug testing equipment, and prosecutors must show that the methods used by law enforcement to obtain evidence are generally accepted by the relevant scientific community in order to introduce test results as evidence at trial. A New York criminal trial court recently published a decision denying a prosecutor’s request to admit the test results of a portable breath test (PBT) in a defendant’s DUI trial.
In the recently addressed case, the defendant was charged with a DUI offense after he was pulled over by law enforcement officers for violating traffic laws. After he was stopped and the officer claimed to observe signs of intoxication, officers administered a PBT to the defendant, which suggested his blood alcohol content was above the legal limit. As a result of the PBT results, the defendant was arrested and charged with a DUI. Notably, a second non-portable breath or blood test was not administered to the defendant while he was at the police station.