Police, The Fourth Amendment, Qualified Immunity

Blowing 0.00% on the breath test does not abrogate probable cause to arrest

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Case:  CONNOLLY v. CALVANESE (N.D.N.Y. 6-7-2012)

 What happened:  Policeman got a tip from a toll taker that a driver on the tollway, who was the plaintiff, might be impaired.  Driver was later found at a rest stop by the policeman.  He consented to a portable breath test and claims that he blew a 0.00% on the test.  The policeman denied that the driver could have seen the result of the breath test, but apparently did not deny that the test showed 0.00%.  Policeman arrested the driver for drunk driving anyway, but that charge was later dismissed.  Driver sued for false arrest, citing the 0.00% breathalyzer test result.

Decision:  Court decided that there was indeed probable cause to arrest, even assuming that the breathalyzer showed 0.00%, due primarily to the policeman’s alleged observation of glassy eyes, the smell of alcohol, the report of the toll taker and the possibility that the driver had made an illegal U-turn on tollway.

Comment:  If a breathalyzer test can help convict a driver, but, as here, not help to prevent arrest and charging of the driver, then there would seem to be no incentive for drivers to voluntarily consent to roadside breath tests absent legal compulsion.  In that sense, this may be bad precedent.

Written by Burgers Allday

June 9, 2012 at 11:46 am

Posted in Uncategorized

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