portable breath test in New York

2019Since the testimony established that, at a minimum, the police had reasonable suspicion ( see People v De Bour , 40 NY2d 210 [1976]) that defendant had been operating a motor vehicle while under the influence of alcohol, there was a proper basis for the police to detain her to administer the portable breath test ( see Vehicle and Traffic Law § 1194[2][a][1]; People v Gonsalez, 144 AD3d 841 [2016], lv denied 28 NY3d 1184 [2017]; People v Tieman , 112 AD3d 975 , 976 [2013], lv denied 23 NY3d 1043 [2014]).

2016The Supreme Court granted suppression of physical evidence and the defendant’s statements to law enforcement officials, finding that the officer had no right to ask for the defendant’s license, registration, and insurance card, as there was no founded suspicion that criminality was afoot, applying the second tier of People v De Bour ( 40 NY2d 210 [1976]).

2016Regardless of what predicate is required for the police to administer a portable breath test to a lawfully stopped motorist ( see People v Brockum , 88 AD2d 697 [3d Dept 1982]), here defendant's pattern of behavior amply provided the police with probable cause to believe that she was intoxicated.

2016Regardless of what predicate is required for the police to administer a portable breath test to a lawfully stopped motorist (see People v Brockum, 88 AD2d 697 [3d Dept 1982]), here defendant’s pattern of behavior amply provided the police with probable cause to believe that she was intoxicated.

2023Based on these observations, petitioner's admission that he had consumed two beers earlier that night, petitioner's poor performance on field sobriety tests and his positive alcohol results on the portable breath test, the trooper had probable cause to believe that petitioner had been driving while intoxicated, in violation of Vehicle and Traffic Law § 1192, and, consequently, the trooper conducted a lawful arrest ( see People v Perez , 213 AD3d 984 . 985-986 [3d Dept 2023]; Matter of Sherwood v New York State Dept. of Motor Vehs. , 153 AD3d at 1024-1025 ).

2023Based on these observations, petitioner's admission that he had consumed two beers earlier that night, petitioner's poor performance on field sobriety tests and his positive alcohol results on the portable breath test, the trooper had probable cause to believe that petitioner had been driving while intoxicated, in violation of Vehicle and Traffic Law § 1192, and, consequently, the trooper conducted a lawful arrest ( see People v Perez , 213 AD3d 984 . 985-986 [3d Dept 2023]; Matter of Sherwood v New York State Dept. of Motor Vehs. , 153 AD3d at 1024-1025 ).

2021With respect to the evidence presented of defendant's two attempts to take a portable breath test (PBT) at the scene, for which there were no results because defendant provided insufficient breath samples, it is well settled that, while evidence of a PBT is not admissible as proof of intoxication ( see People v Palencia, 130 AD3d 1072 [2015]; People v Krut , 133 AD3d 781, 784 [2015]; People v Kulk , 103 AD3d 1038, 1040 [2013]), evidence of a defendant's failure to properly take a PBT can be admitted to show consciousness of guilt ( see People v MacDonald , 89 NY2d at 910), "particularly in lig

2020With respect to the portable breath test [PBT] administered to defendant at the scene, the court found that the People had not presented sufficient evidence of the reliability of PBT results, but nevertheless permitted the arresting officer to testify that he administered a PBT to defendant that produced a "positive" result for alcohol for purposes of explaining police actions leading to defendant's arrest ( see People v Johnson , 117 AD3d 637 , 639 [2014], lv denied 26 NY3d 930 [2015]).

2019Contrary to defendant's contention, regardless of whether the People properly authenticated the calibration results, "[t]he reliability of the [breathalyzer] test [*2] results was an issue for trial and was not a proper issue for the suppression hearing" ( People v Ayala , 87 AD3d 926 [2011], lv denied 17 NY3d 951 [2011]).

2019Contrary to defendant's contention, regardless of whether the People properly authenticated the calibration results, "[t]he reliability of the [breathalyzer] test [*2] results was an issue for trial and was not a proper issue for the suppression hearing" ( People v Ayala , 87 AD3d 926 [2011], lv denied 17 NY3d 951 [2011]).

2019Since the testimony established that, at a minimum, the police had reasonable suspicion ( see People v De Bour , 40 NY2d 210 [1976]) that defendant had been operating a motor vehicle while under the influence of alcohol, there was a proper basis for the police to detain her to administer the portable breath test ( see Vehicle and Traffic Law § 1194[2][a][1]; People v Gonsalez, 144 AD3d 841 [2016], lv denied 28 NY3d 1184 [2017]; People v Tieman , 112 AD3d 975 , 976 [2013], lv denied 23 NY3d 1043 [2014]).

2019Since the testimony established that, at a minimum, the police had reasonable suspicion ( see People v De Bour , 40 NY2d 210 [1976]) that defendant had been operating a motor vehicle while under the influence of alcohol, there was a proper basis for the police to detain her to administer the portable breath test ( see Vehicle and Traffic Law § 1194[2][a][1]; People v Gonsalez, 144 AD3d 841 [2016], lv denied 28 NY3d 1184 [2017]; People v Tieman , 112 AD3d 975 , 976 [2013], lv denied 23 NY3d 1043 [2014]).

2019Since the testimony established that, at a minimum, the police had reasonable suspicion ( see People v De Bour , 40 NY2d 210 [1976]) that defendant had been operating a motor vehicle while under the influence of alcohol, there was a proper basis for the police to detain her to administer the portable breath test ( see Vehicle and Traffic Law § 1194[2][a][1]; People v Gonsalez, 144 AD3d 841 [2016], lv denied 28 NY3d 1184 [2017]; People v Tieman , 112 AD3d 975 , 976 [2013], lv denied 23 NY3d 1043 [2014]).

2018People v Krut , 133 AD3d 781 , 784-785 [2015]), may support an inference of reasonable cause ( see People v Kulk , 103 AD3d 1038 , 1040 [2013]; People v Hogue , 136 AD3d 1351 , 1353 [2016]). "[A]s a matter of common sense and reasonable pleading" ( People v Davis , 13 NY3d 17 , 31 [2009]), the factual allegations suffice to support an inference that it is "reasonably likely" (CPL 70.10 [2]) that defendant committed the offense of common law driving while intoxicated.

2018People v Krut , 133 AD3d 781 , 784-785 [2015]), may support an inference of reasonable cause ( see People v Kulk , 103 AD3d 1038 , 1040 [2013]; People v Hogue , 136 AD3d 1351 , 1353 [2016]). "[A]s a matter of common sense and reasonable pleading" ( People v Davis , 13 NY3d 17 , 31 [2009]), the factual allegations suffice to support an inference that it is "reasonably likely" (CPL 70.10 [2]) that defendant committed the offense of common law driving while intoxicated.

2012While, as the foregoing discussion demonstrates, this court is mindful of the decision in People v Salerno, this court is also well aware of prior decisions of the same Appellate Term, in People v Graziano ( 19 Misc 3d 133[A] , 2008 NY Slip Op 50692[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2008], Iv denied 10 NY3d 934 [2008]), and of the Court of Appeals, in People v Cunningham ( 95 NY2d 909 [2000]), which unequivocally recognize the failure to submit to a lawful request for a preliminary or portable breath test pursuant to Vehicle and Traffic Law § 1194 (1) (b) to be a cognizable offense.