August 12, 2015
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Mr. Epstein is a member of the National College for DUI Defense and has lectured, taught workshops and continuing legal education classes on the subject of DWI defense across the New York metropolitan area for many organizations. Mr. Epstein is a founding partner in the firm of Barket Marion Epstein & Kearon, LLP and is available for all your DWI needs.

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Barket Marion Epstein & Kearon, LLP

666 Old Country Road, Suite 700

Garden City, New York 11530

Phone: 516.745.1500 Fax: 516.745.1245


 5 Columbus Circle, Suite 710

New York, New York 10019 

Phone: 212.972.1710    


Dear Friends and Colleagues,  
In an earlier edition of this newsletter, I informed you of  a series of recent decisions in the local Criminal Courts of the City of New York that have allowed the prosecution to introduce the results of preliminary breath tests to establish intoxication at trial. See People v. Jones, 33 Misc.3d 181 (N.Y.City. Crim. Court, 2011, Mandelbaum, J.); People v. Aliaj, 36 Misc.3d 682 (N.Y. City Crim.Ct., 2012, Conviser, J.),  People v. Hargobind, 34 Misc.3d 1237(A)(Kings Co. Crim.Ct., 2012, Gerstein, J.). The rationale of these decisions is premised on the fact that some preliminary breath test devices are included on the Conforming Products List of Evidential Breath Alcohol Measurement Devices as established by the United States Department of Transportation/National Highway Traffic Safety Administration.  
It had long has been recognized that the purpose of a field test is to provide probable cause for a defendant's arrest and not to serve as evidence at trial. In People v. Thomas, 70 NY2d 823 (1987), the Court of Appeals held that it was error to admit evidence of a field test at trial, specifically an Alco-Sensor.  Many courts have similarly ruled that field tests are inadmissible at trial.  See People v Reed, 5 Misc 3d 1032(A) (Sup Ct, Bronx County 2004, Tallmer, J.); People v Santana, 31 Misc 3d 1232(A) (Crim Ct, NY County 2011, Simpson, J.); People v Schook, 16 Misc 3d 1113(A)(Suffolk Dist Ct 2007, Alamia, J.); People v Harper, 18 Misc 3d 1107(A) (Justice Ct., Dutchess County 2007, Steinberg, J.). 
In People v. Kulk, 103 A.D.3d 1038 (3rd Dept. 2013)  the court concluded that there is no place in a trial for the admission of the results of a preliminary breath test and affirmed the trial court decision which denied the defendant's request to introduce the results of a preliminary breath test. 
Now the Appellate Division, Second Department has weighed in.  In People v. Palencia, 2015 Slip Op. 06373, decided on July 29, 2015, the Court reversed a trial court ruling which allowed evidence of the PBT at trial.  The Court ruled that the result of the PBT is not admissible to establish intoxication as its reliability for this purpose is not generally accepted in the scientific community.  This was despite the inclusion of the device on the conforming products list.  It is also of note that in Palencia the PBT was not introduced to prove intoxication, but the Court was so concerned about the impact the PBT evidence would have that it found its admission into evidence was so prejudicial that it deprived the defendant of his constitutionally guaranteed right to a fair trial.
Steven B. Epstein, Esq.
Barket Marion Epstein & Kearon, LLP



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  - Yoda