3rd Department Rules Results of PBT Not Admissible In the City of New York there has been a recent series of decisions allowing the prosecution to introduce at trial the results of portable breath tests to establish intoxication. See People v. Aliaj, 36 Misc.3d 683 (N.Y. City Crim.Ct., 2012), People v. Jones, 33 Misc.3d 181 (N.Y.C. Crim. Court, 2011); People v. Hargobind, 34 Misc.3d 1237(A)(Kings Co. Crim.Ct., 2012). Despite the historical use of portable breath tests as screening devices and not for proof of intoxication, these courts have ignored the lack of scientific safeguards such as reference standards. In the recent decision of People v. Kulk, 2013 WL 709069 (App. Div. 3rd Dept. 2013), decided February 28, 2013, the court affirmed the trial court decision which denied the defendant's request to introduce the results of a portable breath test indicating a BAC of .06 into evidence. The court held that "although the alco-sensor test may be used to establish probable cause for an arrest, it is not admissible to establish intoxication, as its reliability for this purpose is not generally accepted in the scientific community. This decision represents a clear statement of an appellate court recognizing that despite the inclusion of a portable breath test on the Federal Conforming Products List, the results of any such test are inadmissible to prove intoxication at trial. |
