Court upholds NYPD intoxilyzer policy

Last week the U.S. Court of Appeals for the 2nd Circuit held that the New York Police Department's policy of requiring that any officer who killed or injured a person as the result of a shooting take a breath alcohol test was not unconstitutional.

In the wake of the Sean Bell shooting in November 2006, the NYPD instituted a new policy under which officers involved in shootings were required to submit to a portable breath test device and, should the device measure an alcohol concentration of .08 or higher, an intoxilyzer test.

In Lynch v. City of New York, the Patrolmen's Benevolent Association, filed suit challenging the constitutionality of the program, arguing that forcing an officer to submit to a breath test violated the officer's right to privacy under the 4th Amendment's prohibition against unreasonable search and seizure. The plaintiffs argued that the primary purpose of the policy was crime control and that the officers' privacy rights outweighed the department's interest in fighting crime.

The trial court denied the plaintiffs' request for a temporary restraining order and the union appealed. The appellate court ruled that, although crime control was one purpose of the policy that it was not the primary purpose and that the court was correct in weighing the interests of the officers against the interests of the department. The court cited the department's interest in protecting the image of the NYPD as well the department's need to discourage officers from handling firearms after consuming alcohol.

The states, in enacting their informed consent laws, rely on the crutch that the purpose of coercing a driver into providing a sample serves a deterrent purpose to the driving public. If that were the purpose of the laws, then the states should make it clear to motorists that by driving on public roads, they are agreeing to blow into the state's breath test machine. If you were told this at the time you applied for your driver's license, please raise your hand.

The real purpose of the informed consent laws is to gather evidence to use in a drunk driving prosecution. Why else would statutes allow a driver's refusal to be introduced into evidence at trial as evidence of guilt? In reality the entire purpose of informed consent laws is crime control - and that being the case, the constitutionality of such a scheme should not be subject to a balancing test of the interests involved. The real questions should be whether such a law violates a person's right to avoid self-incrimination and whether they constitute an unreasonable search and seizure.

Joe McCarthy didn't care for the right to remain silent, either.