alco-sensor test in New York

2022"Although an Alco-Sensor test is not admissible as evidence of intoxication, breath screening devices have won acceptance as being sufficiently reliable to establish probable cause for an arrest" ( People v Thomas , 121 AD2d 73, 76 [4th Dept 1986], affd 70 NY2d 823 [1987]), and a refusal to submit to a breath screening device, such as the Alco-Sensor, can be considered in determining whether an arrest is lawful ( see People v Moskal , 262 AD2d 986 , 987 [4th Dept 1999]).

2022"Although an Alco-Sensor test is not admissible as evidence of intoxication, breath screening devices have won acceptance as being sufficiently reliable to establish probable cause for an arrest" ( People v Thomas , 121 AD2d 73, 76 [4th Dept 1986], affd 70 NY2d 823 [1987]), and a refusal to submit to a breath screening device, such as the Alco-Sensor, can be considered in determining whether an arrest is lawful ( see People v Moskal , 262 AD2d 986 , 987 [4th Dept 1999]).

1998Alco-sensor test results are sufficiently reliable to establish probable cause for an arrest (see, Matter of Smith v Commissioner of Motor Vehicles, 103 AD2d 865 ) and may be used by the police to establish a basis to request a breathalyzer test (Vehicle and Traffic Law § 1194 [1] [a], [b]).

1986Although an Alco-Sensor test is not admissible as evidence of intoxication, breath screening devices have won acceptance as being sufficiently reliable to establish probable cause for an arrest (see, Matter of Smith v Commissioner of Motor Vehicles, 103 AD2d 865, 866 ; see also, Boyd v City of Montgomery, 472 So 2d 694, 697, supra; State v Thompson, 357 NW2d 591, 593 , supra; State v Orvis, 143 Vt 388, 465 A2d 1361, 1362-1363 , supra) and may be used by the police to establish a basis to request a breathalyzer test (Vehicle and Traffic Law §§ 1193-a, 1194 [1] [2]).

1988(See, Schmerber v California, 384 US 757 [1966]; People v Brockum, 88 AD2d 697 [3d Dept 1982]; People v Graser, 90 Misc 2d 219 [Erie County 1977].) In the present case although there was no immediate traffic violation involved, the totality of circumstances including the observations made by the police, the alco-sensor test results and defendant’s admission about drinking provided probable cause for charging him with driving while intoxicated.

1987(People v Brockum, 88 AD2d 697 [3d Dept 1982], citing Schmerber v California, 384 US 757 , supra; People v Kates, supra, 53 NY2d, at 594-595 .) Moreover, it is uncontroverted that both the breathalyzer exam and the Alco-Sensor test were administered well within two hours of the initial stop of the vehicle.

1988(See, Schmerber v California, 384 US 757 [1966]; People v Brockum, 88 AD2d 697 [3d Dept 1982]; People v Graser, 90 Misc 2d 219 [Erie County 1977].) In the present case although there was no immediate traffic violation involved, the totality of circumstances including the observations made by the police, the alco-sensor test results and defendant’s admission about drinking provided probable cause for charging him with driving while intoxicated.

1982The extraction of breath from a defendant has been equated with a search and seizure (People v Kates, 77 AD2d 417 ; People v Graser, supra), and probable cause to arrest is the same as probable cause to search (Draper v United States, 358 US 307 — probable cause to arrest — relied upon in Spinelli v United States, 393 US 410 — probable cause to search).

1988(See, Schmerber v California, 384 US 757 [1966]; People v Brockum, 88 AD2d 697 [3d Dept 1982]; People v Graser, 90 Misc 2d 219 [Erie County 1977].) In the present case although there was no immediate traffic violation involved, the totality of circumstances including the observations made by the police, the alco-sensor test results and defendant’s admission about drinking provided probable cause for charging him with driving while intoxicated.

1987(People v Brockum, 88 AD2d 697 [3d Dept 1982], citing Schmerber v California, 384 US 757 , supra; People v Kates, supra, 53 NY2d, at 594-595 .) Moreover, it is uncontroverted that both the breathalyzer exam and the Alco-Sensor test were administered well within two hours of the initial stop of the vehicle.

2022We conclude from the totality of the circumstances that the Trooper had probable cause to believe that defendant was driving in violation of Vehicle and Traffic Law § 1192 ( see People v Lewis , 147 AD3d 1481, 1481 [4th Dept 2017]; People v Gibeau , 55 AD3d 1303 , 1304 [4th Dept 2008], lv denied 12 NY3d 758 [2009]).

2022We conclude from the totality of the circumstances that the Trooper had probable cause to believe that defendant was driving in violation of Vehicle and Traffic Law § 1192 ( see People v Lewis , 147 AD3d 1481, 1481 [4th Dept 2017]; People v Gibeau , 55 AD3d 1303 , 1304 [4th Dept 2008], lv denied 12 NY3d 758 [2009]).

2022We conclude from the totality of the circumstances that the Trooper had probable cause to believe that defendant was driving in violation of Vehicle and Traffic Law § 1192 ( see People v Lewis , 147 AD3d 1481, 1481 [4th Dept 2017]; People v Gibeau , 55 AD3d 1303 , 1304 [4th Dept 2008], lv denied 12 NY3d 758 [2009]).

2022We conclude from the totality of the circumstances that the Trooper had probable cause to believe that defendant was driving in violation of Vehicle and Traffic Law § 1192 ( see People v Lewis , 147 AD3d 1481, 1481 [4th Dept 2017]; People v Gibeau , 55 AD3d 1303 , 1304 [4th Dept 2008], lv denied 12 NY3d 758 [2009]).

2022"Although an Alco-Sensor test is not admissible as evidence of intoxication, breath screening devices have won acceptance as being sufficiently reliable to establish probable cause for an arrest" ( People v Thomas , 121 AD2d 73, 76 [4th Dept 1986], affd 70 NY2d 823 [1987]), and a refusal to submit to a breath screening device, such as the Alco-Sensor, can be considered in determining whether an arrest is lawful ( see People v Moskal , 262 AD2d 986 , 987 [4th Dept 1999]).

2022"Although an Alco-Sensor test is not admissible as evidence of intoxication, breath screening devices have won acceptance as being sufficiently reliable to establish probable cause for an arrest" ( People v Thomas , 121 AD2d 73, 76 [4th Dept 1986], affd 70 NY2d 823 [1987]), and a refusal to submit to a breath screening device, such as the Alco-Sensor, can be considered in determining whether an arrest is lawful ( see People v Moskal , 262 AD2d 986 , 987 [4th Dept 1999]).

2021In MacDonald , wherein the defendant had consented to take an alco-sensor test at the scene and then attempted to provide an inadequate breath sample for the test, the Court of Appeals held that evidence of the defendant's failure to properly take the PBT was admissible "as evidence of consciousness of guilt, particularly in light of the trial court's limiting instructions to the jury on this point" ( id. at 910 ).

2016Finally, defendant admitted to the officer that she had consumed alcohol approximately three hours prior to the accident, and an Alco-Sensor test at the scene returned a positive result (see People v Kulk, 103 AD3d 1038, 1040 , lv denied 22 NY3d 956 ).

2016Finally, defendant admitted to the officer that she had consumed alcohol approximately three hours prior to the accident, and an Alco-Sensor test at the scene returned a positive result (see People v Kulk, 103 AD3d 1038, 1040 , lv denied 22 NY3d 956 ).

2014The failure to reveal the hearsay nature of the information improperly deprived County Court of the opportunity to determine the reliability of the information for itself as a neutral, detached arbiter (see People v Whelan, 165 AD2d at 322 ).

2014The failure to reveal the hearsay nature of the information improperly deprived County Court of the opportunity to determine the reliability of the information for itself as a neutral, detached arbiter (see People v Whelan, 165 AD2d at 322 ).

2012In People v Thomas ( 121 AD2d 73, 76 [4th Dept 1986]), the Court found that, while Alco-Sensor test results are inadmissible at trial for the purpose of establishing intoxication, such results are admissible at suppression hearings, because “breath screening devices have won acceptance as being sufficiently reliable to establish probable cause for an arrest.” Similarly, in People v Jones ( 10 Misc 3d 413, 416 [Dutchess County Ct 2005], affd 50 AD3d 1058 [2d Dept 2008]), the court stated that the Alco-Sensor is “sufficiently reliable for use in determining the presence of alcohol,” and found th

2009County Court correctly determined that the officer had “reasonable grounds to believe” that defendant had been driving while intoxicated (People v Kowalski, 291 AD2d at 670 ).

2009County Court correctly determined that the officer had “reasonable grounds to believe” that defendant had been driving while intoxicated (People v Kowalski, 291 AD2d at 670 ).

2008The failure of the probation officers to continuously observe the defendant for at least 15 minutes prior to administering the Alco-Sensor test of the defendant’s breath goes only to the weight to be afforded the test results, and not to their admissibility (see People v McDonough, 132 AD2d 997 [1987]; People v Terrance, 120 AD2d 805 [1986]).

2008The failure of the probation officers to continuously observe the defendant for at least 15 minutes prior to administering the Alco-Sensor test of the defendant’s breath goes only to the weight to be afforded the test results, and not to their admissibility (see People v McDonough, 132 AD2d 997 [1987]; People v Terrance, 120 AD2d 805 [1986]).

2008The failure of the probation officers to continuously observe the defendant for at least 15 minutes prior to administering the Alco-Sensor test of the defendant’s breath goes only to the weight to be afforded the test results, and not to their admissibility (see People v McDonough, 132 AD2d 997 [1987]; People v Terrance, 120 AD2d 805 [1986]).

2008The failure of the probation officers to continuously observe the defendant for at least 15 minutes prior to administering the Alco-Sensor test of the defendant’s breath goes only to the weight to be afforded the test results, and not to their admissibility (see People v McDonough, 132 AD2d 997 [1987]; People v Terrance, 120 AD2d 805 [1986]).

2008The evidence presented at the violation of probation hearing that the defendant violated a condition of his probation by testing positive for the presence of alcohol on two separate occasions is sufficient to prove, by a preponderance of the evidence, that the defendant violated the terms and conditions of probation (see People v Minard, 161 AD2d 607 [1990]).

2008The evidence presented at the violation of probation hearing that the defendant violated a condition of his probation by testing positive for the presence of alcohol on two separate occasions is sufficient to prove, by a preponderance of the evidence, that the defendant violated the terms and conditions of probation (see People v Minard, 161 AD2d 607 [1990]).

2005Even absent the alco-sensor test readings, the misbehavior report, written by the correction officer who personally observed petitioner’s appearance and behavior, together with the testimony at the hearing, provide substantial evidence, standing alone, to support the determination of guilt (see Matter of Hicks v Selsky, 273 AD2d 584 [2000]; Matter of Ross v Goord, 262 AD2d 904, 905 [1999]).

2002In this regard, probable cause need not always be premised upon the performance of field sobriety tests (see, People v Poje, supra at 650; People v Grow, 249 AD2d 686 ; People v Cooper, 219 AD2d 426, 433 , affd 90 NY2d. 292) or any specific number of such tests (see, People v Swanston, supra at 601; see also, People v Spencer, 289 AD2d 877, 879 ; Dykeman v Jackson, 262 AD2d 877 ; People v Califano, 255 AD2d 701 ; People v Sawinski, 246 AD2d 689 , lv denied 91 NY2d 930 ; People v Tittensor, 244 AD2d 784 ; People v Mena-Coss, 210 AD2d 745 , lv denied 86 NY2d 798 ).

2002In this regard, probable cause need not always be premised upon the performance of field sobriety tests (see, People v Poje, supra at 650; People v Grow, 249 AD2d 686 ; People v Cooper, 219 AD2d 426, 433 , affd 90 NY2d. 292) or any specific number of such tests (see, People v Swanston, supra at 601; see also, People v Spencer, 289 AD2d 877, 879 ; Dykeman v Jackson, 262 AD2d 877 ; People v Califano, 255 AD2d 701 ; People v Sawinski, 246 AD2d 689 , lv denied 91 NY2d 930 ; People v Tittensor, 244 AD2d 784 ; People v Mena-Coss, 210 AD2d 745 , lv denied 86 NY2d 798 ).