Tuesday, August 21, 2012

New York DWI Portable Breath Tests: The Times They Are a-Changin'

I like Bob Dylan, even my son likes Bob Dylan, his songs still resonate with themes that provoke people to challenge the status quo. It is to me so American, We will not go silently into the night. We will speak out against that which will feel is unfair, unjust, or wrong.

His lyrics command us to take notice of the world around us, and that is why they are timeless. They are as true today as when he cast them down in 1964.

Come senators, congressmen
Please heed the call
Don’t stand in the doorway
Don’t block up the hall
For he that gets hurt
Will be he who has stalled
There’s a battle outside and it is ragin’
It’ll soon shake your windows and rattle your walls
For the times they are a-changin’
Come mothers and fathers
Throughout the land
And don’t criticize
What you can’t understand
Your sons and your daughters
Are beyond your command
Your old road is rapidly agin’
Please get out of the new one if you can’t lend your hand
For the times they are a-changin’
                                          Bob Dylan, The Times They Are A-Changin'

The TRUTH about the Law

People sit and wait and when the legislature makes new law or revisions to old law they get all excited. In fact, it is usually front page news and run on all the TV stations.

But in truth the laws's application and interpretation are the real excitement. The State of New Jersey has had a death penalty for a gazillion years BUT has it ever been APPLIED? NO. So in the real world we have law without application or with light application or with re-interpretation. These are actually more powerful measures (and more common) than merely getting law passed (writing and legislating).
Some call this a check and balance against (and within) a larger system, the legislative branch to the judicial branch to even the little municipal courts. 

The Times They Are A-Changin'

Just looking at the major changes in Supreme Court Rulings over the past 50 years involving the 4th, 5th, and 6th amendments shows just how far we have come to re-interpreting a Constitution that is over 200 years old. Most DWI law is practiced within these three powerful amendments to the Constitution.

4th: No unreasonable Search and Seizure
5th: Right to remain silent
6th: Right to Due Process (trial, confrontation, witnesses)

They (SCOTUS: The Supreme Court of the US) did not make changes with a revision of words, terms, or additions of those amendments. The real change occurred with how the Supreme Court felt they should be applied and understood in these new times. Do New Times call for new interpretations?

NY DWI LAW and the Portable Breath (Field) Test

A recent New York State Court Opinion involving NY DWI law is about to take us a major leap backward. Over many decades the portable (roadside) breath test has been deemed inadmissible at trial for a BAC (blood alcohol concentration) level to prove a "per se" VTL 1192 (2) DWI. It has been allowed only to help prove PC (probable cause) to make a DWI arrest. It does shows (indicate) the consumption of some alcohol but a "Specific, Scientific, Reliable, Accurate" BAC number has never been the case from these units.

In People v. Hargobind, a case decided on February 29, 2012, the People (the state/the prosecution) offered into trial the results of a PORTABLE BREATH TEST.  Specifically, the Intoximeter. The Intoximeter Alco-Sensor is a portable field breath test device. They also wanted to now charge DWI "per se" based upon the BAC number reported by the unit.


This unit offers fuel cell technology, meaning like a battery it will eventually wear out or down. When this occurs or how it occurs is anyone's guess. It uses a 9 volt battery. The temperature range of this device is very wide (10 to 40 degrees C.).

Major Differences between Portable Fuel Cells and Table Top Plug In Chemical Tests

A chemical test (table top) machine (Datamaster, Draeger) measures a BAC:

1) You breathe into the machine (it takes a sample after an observation period),
2) The breath sample is "percolated through a mixture of sulfuric acid, potassium
dichromate, silver nitrate and water"(pre-measured and sealed), and
3) The machine measures the passage of light through (this chemical reaction) to determine the level of alcohol in your breath.

With a portable fuel cell device, there is no separate and individual tube of sample (prepared, measured) chemicals. There is no maintaining of a constant temperature of 34 degrees (as close to breath temperature). There is little to no pre-test observation period (before the test is given) to eliminate the error of mouth alcohol and/or breath contamination. 

Getting back to People v. Hargobind, the driver refused the Chemical test (table top machine) back at the station, so it is was a TRUE DWI refusal case but the prosecution sought to still charge and try to convict on a BAC number that came from this roadside, portable test. They wanted to charge DWI per se, VTL 1192 (2) with a BAC .08 or more, and the Court allowed it!


Many Courts (following People v. Thomas, 1986) have not allowed this (portable alco-sensor tests) in as evidence at a DWI trial because the government must lay out a proper foundation before introducing the results of any of these types of fuel cell tests and fuel cells were NOT on the list of approved (scientific) devices at the Federal or State Level.

THE FUTURE: The Times They Are A-Changin'

Two things have happened since the Courts relied upon the 1986 decision in People v. Thomas

1. Portable Fuel Cell Tests are now on the list of scientifically recognized testing devices by the New York State Health Department. The Intoximeter is now on the Conforming Products List of Evidential Breath Alcohol Measurement Devices. This has been since May 2007.

2. This device, the Intoximeter has been on the Federal list of approved evidential (evidence in trial) breath testing devices since 2004.


The Court in People v. Hargobind allowed the people (the government) leeway to:

1. Charge the driver with VTL 1192 (2) DWI "per se" based upon the portable Intoximeter, and
2. Introduce the breath tests results from the Intoximeter at trial if they could lay a proper foundation.

The Court stated that a Proper Foundation has these 8 main parts:

1. Proof the device was tested
2. that it produced a reference standard close in time to the defendant's field breath test
3. that the device is properly calibrated
4. that the device was properly functioning
5. that the test was properly administered
6. that the device was purged prior to testing
7. purged by a properly qualified administrator
8. that the motorist was observed for 15 minutes prior to testing

This last point was to insure no contamination of the breath sample by tobacco, vomit, regurgitation, food, smoke, etc.


The Court in Hargobind cited numerous problems that the prosecution would have in this specific case including the fact that the roadside breath testing:

1. Was NOT in a controlled facility, 
2. Had NO observation period, 
3. Had NO pre and post purge sample of the device, 
4. Had NO opportunity to refuse this test (NO warnings given),  and 
5. Had NO calibration of the device. 

A great many Had NOs = a bad case for the State but one that still needed to be challenged. You can never sit in your rights to challenge bad evidence or you will be trampled by the wheels of justice.

So the gates or walls are being challenged at every crack. The government is trying to get a guilty verdict even on evidence that is spotty. IMO It is Always a good idea to stay on your A game when these are the times we are living in and they most definitely are a-changin'

Larry Newman

Lawrence (Larry) Newman, D.C., J.D.
Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850