NY Police sue to avoid BAC Test

From the Fourth Amendment.com:

NYPD policy that officers who discharge their firearms resulting in death or injury must be subjected to a breath test is constitutional.

Union representatives of New York police officers filed suit in federal court challenging the constitutionality of a NYPD policy that requires an officer take a breath test immediately after causing death or serious injury from firing his or her weapon.

Pursuant to this policy, the officer takes a portable breathalyzer test in a private setting. If the BAC is .08 or over, the officer is taken in and given a more accurate intoxilyzer machine.

The police challenged the policy on Fourth Amendment grounds. That sounds very familiar. I think the defense bar did that many times. Of course, we all know that outcome.

This post is not about the constitutionality of the NYPD policy. I just thought it was odd that an organization whose members advocate BAC testing would challenge the application when it was aimed at them.

I have always been a critic of the breathalyzer machine. Now, we have new laws where guilt is determined by the results of these machines. If you blow a certain amount you are automatically guilty. This just doesn’t seem right to me, especially when we know that these machines are not as accurate as some organizations and law enforcement would have you believe.

Whenever a police officer is charged with driving under the influence it is interesting to see if the officer took the breathalyzer test. If it was a refusal, I always wonder if it was because the cop knew about the unreliability of the machine.

In South Carolina you still have the right to refuse to take the datamaster. You may suffer some administrative consequences, but the state can’t compel you to take it. I like that right. I also might agree with the police who don’t want to take it either. Except that I don’t believe you can have it both ways.