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Court Upholds NYPD Policy That Cops Take Breathalyzer After Firing Weapon

November 19, 2013  | 

A federal appeals court has upheld a controversial NYPD policy requiring officers who've fired their guns to immediately take a sobriety test, reports the New York Daily News.

The NYPD's Interim Order 52 calls for alcohol testing when any officer, "on or off-duty, is involved in a firearm discharge within New York City which results in injury to or death of a person."

The police union challenged the policy, contending the "warrantless, suspicionless Breathalyzer testing" was a violation of its members' privacy interests. The Patrolmen's Benevolent Association also protested.

Al O'Leary, a spokesman for the PBA, said the union is "reviewing the decision and considering our options."

Comments (10)

Displaying 1 - 10 of 10

bpd3733 @ 11/19/2013 5:52 PM

That's foolish to object to testing. In Nebraska, I already require a breath test and a urine test.

There are plenty of legal issues to challenge that hinder law enforcement. You must pick your battles. This challenge doesn't help anyone. Challenging this one leaves the public extremely suspicious of all of us.

Ima Leprechaun @ 11/20/2013 12:55 AM

There is a false positive possible from acetate should the shooter have any form of diabetes. Stress can cause this false positive on any persons breath. Also an Officer "off duty" does have a right to privacy that Officers "on duty" would not be presumed to have. Just because you are a police officer does not mean you automatically give up all your civil rights off duty. There are issues here that need to be addressed.

Trigger @ 11/20/2013 4:45 AM

If you feel that the breath test is skewed then submit to a blood or urine test on your own (It would seem like the union would offer options). Off duty is one thing, however when you pull the trigger things change.

Horus @ 11/20/2013 6:32 AM

I believe the issue is off duty officers have the same rights as any other citizen. Therefore if New York puts the same scrutiny on all citizens then im ok with the breath tests. However, if they are not I agree this is an invasion of the officers privacy and could put them in undue jeopardy.

AJ @ 11/20/2013 7:00 AM

You can't get a BAC from urine... And it does not matter if you are on duty or off, you do not forfeit your rights under the constitution so.... Make a Garrity statement before taking the test, and the test becomes administrative only. It cannot be used against you in a court of law.

A much better approach is to have a competent supervisor or investigator inspect the shooter for signs of impairment. If there are none, document it and be done. If there are, request consent, use your states felony blood exigency if you have one, or get a warrant. That would take a competent investigator mere minutes and should be no more than one page in length.

Trigger @ 11/20/2013 9:06 AM

AJ here is some info on urine testing:

What is Ethyl Glucuronide?

Ethyl Glucuronide (EtG) is a direct metabolite of beverage alcohol (ethanol). Its presence in urine may be used to detect recent alcohol consumption, even after ethanol is no longer measurable. The presence of EtG in urine is a definitive indicator that alcohol was ingested.

Key Benefits of Using EtG test Include:

Detects recent usage more accurately and for a longer period of time than standard testing

Ideal for zero tolerance and abstinence situations

Strong indicator of alcohol ingestion within the previous 3 to 4 days

EtG is only evident when alcohol is consumed and is not produced as a result of fermentation

Allows monitoring in alcohol treatment programs

Acts as an early warning system to detect t rends towards relapse

Tests are performed by LC/MS/MS on state of the art equipment for accuracy and reliability

EtG may be run on urine specimens in conjunction with other drug testing panels

Capt. Crunch @ 11/20/2013 12:14 PM

No officer in their right mind would drink an alcolholic beverage while on duty, so this law just takes away the honor system for all officers while on duty. For off duty officers this law takes away their civil rights. Also how about ABC officers who are allowed to drink while uncover what will they do to them if they fire a weapon? I would like to give Eric Holder a breathalyzer test and see the test results.

Jim B. @ 11/22/2013 8:23 AM

Here are some issues with some points that have been raised. I concur with bpd3733, I don't think it is unreasonable for them to be tested. True, there is the possibility of false positives, at which point, additional tested should be performed to verify or disprove the result.

For those taking issue with off duty vs on duty: Officers in NYC are carrying their weapons off duty based on their authority as NYPD officers whereas the typical citizen cannot legally do so. Therefor, they are subject to some oversight by the department. If you are simply carrying based on a CCW that any average citizen could get (and not using a department weapon) then you could probably tell the dept to pound sand. But since most citizens can't get a CCW in NYC, the officers are enjoying a benefit from their job, with that comes additional obligations.

Jim B. @ 11/22/2013 8:37 AM

To continue:

AJ, I have no problem with the officers invoking Garrity in this circumstance. I think that's the way to go. Your alternative approach also makes sense but that's apparently not the way the department wants to go with it and I don't think their requirement for a breathalyzer is unreasonable.

Trigger: Sounds like you cut and pasted that EtG stuff from a testing companies website. Be that as it may, I don't see anything there that says the test can determine BAC at the time of testing. The fact that it can detect alcohol consumption from past 3 to 4 days is actually a strike against that testing. The purpose of being tested after a shooting is to determine if I was drunk at the time. If I had a beer at dinner the night before and that shows up on the test, doesn't mean I was drunk at the time of the shooting.

Capt Crunch: You're not actually suggesting there has never been a cop who drank on duty are you?

PatrolMSGT @ 11/29/2013 6:09 AM

Ima Leprechaun "There is a false positive possible from acetate should the shooter have any form of diabetes." False! The amount of ACETONE needed to get a false positive is well over a lethal dose! Didn't they teach you anything about the science behind the Chemical Analyses of the Breath? Or is it that here in NC they see fit to not have it part of rookie school. And to have it as a specialty course. With the Officer needing to be re-certified every Two Years. And as far as no Officer in their right mind. I know of Two former Officers that did drink on duty/report for duty when intoxicated. Both had their LEO Certs pull by the NC Police Standards Commission.

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