You are here: / / Portable Breath Test Device (PBT) Results Should Not Have Been Admitted,...
,

Portable Breath Test Device (PBT) Results Should Not Have Been Admitted, Driving While Intoxicated Conviction Reversed

The Second Department reversed defendant’s driving while intoxicated (DWI) conviction because the results of the portable breath test device (PBT) were allowed in evidence in the People’s direct case:

Generally, the result of a PBT, such as an Alco-sensor, “is not admissible to establish intoxication, as its reliability for this purpose is not generally accepted in the scientific community” … . Contrary to the trial court’s determination, isolated remarks during defense counsel’s opening statement did not open the door for the People to introduce incriminating testimony about the PBT result as part of their case-in-chief, particularly in the absence of appropriate limiting instructions … . We note that the opening remarks at issue, regarding the officer discarding the PBT “cap,” were at least partly offered in support of the defense theory that the defendant was not aware that he was the subject of a lawful arrest on the night in question, which theory was offered to undermine the charges of assault in the second degree and resisting arrest. Further, we find that the People adequately responded to this remark by eliciting the officer’s testimony that he disposed of the plastic cap because it was unsanitary, and this was standard procedure. Nonetheless, the People elicited testimony that, according to the PBT, the defendant’s BAC was .128%, significantly higher than the legal limit of .08%, before defense counsel had an opportunity to raise this issue during cross-examination … . Under these circumstances, it cannot be said that the defendant opened the door for the People to adduce evidence of an insufficiently reliable PBT result in order to prove the defendant’s intoxication … .

Thereafter, the trial court did not provide the jury with any limiting instructions regarding the PBT result …, but instead directed the jury to consider the PBT result as direct proof of the defendant’s intoxication. The court told the jury that the PBT was a “generally accepted instrument in determining blood alcohol content,” and that no scientific expert was necessary. This was error … . Under the circumstances, including the lack of evidence of admissible field sobriety tests, we find that this error was not harmless beyond a reasonable doubt. People v Krut, 2015 NY Slip Op 08439, 2nd Dept 11-18-15

 

You might also like
NOTICE OF CROSS MOTION DID NOT INCLUDE THE RELIEF SOUGHT OR THE GROUNDS FOR RELIEF AS REQUIRED BY CPLR 2214 (a), CROSS MOTION PROPERLY DISMISSED (SECOND DEPT).
THE PROMISSORY NOTE WAS NOT DEMONSTRATED TO BE AN INSTRUMENT FOR THE PAYMENT OF MONEY ONLY, THE MOTION FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
DEFAULT JUDGMENT DISCHARGING THE MORTGAGE SHOULD HAVE BEEN GRANTED, THE SIX YEAR STATUTE OF LIMITATIONS FOR FORECLOSURE STARTED WHEN THE DEBT WAS ACCELERATED BY THE FORECLOSURE ACTION WHICH WAS ULTIMATELY DISMISSED (SECOND DEPT).
Justice Should Have Recused Himself—Law Clerk Married to Hearing Witness
CLAIMANT DEMONSTRATED SHE CONTRACTED COVID AT THE WORKPLACE AND WAS ENTITLED TO WORKERS’ COMPENSATION BENEFITS (THIRD DEPT).
DESPITE PLAINTIFF’S APPARENT VIOLATION OF THE VEHICLE AND TRAFFIC LAW, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT).
THE EXCESS INSURANCE CARRIER WAS NOT BARRED FROM RECOVERY OF THE AMOUNT IT CONTRIBUTED TO THE SETTLEMENT OF A PERSONAL INJURY ACTION BY THE VOLUNTARY PAYMENT DOCTRINE; THE EXCESS INSURANCE CARRIER’S BREACH-OF-THE-COVENANT-OF-GOOD-FAITH ACTION AGAINST THE PRIMARY CARRIER PROPERLY SURVIVED SUMMARY JUDGMENT (SECOND DEPT).
Procedure for Determining a Motion to Dismiss Pursuant to CPLR 3211 (a)(7) Where the Defendant Submits Evidence Explained/Elements of Gross Negligence Explained

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2024 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Plaintiff Judgment-Creditor’s Action Under the Debtor Creditor Law to... Defendant Implicitly Consented to a Mistrial on Two of Three Counts by Requesting...