Post-Incident Breath Test Ruled Constitutional

The unions representing New York City’s police officers, detectives, and sergeants brought a lawsuit challenging NYPD Interim Order 52, which requires that a breathalyzer test be administered to any NYPD officer involved in a shooting that results in injury or death to a person in New York City. The unions challenged the Order as an unconstitutional search in violation of the Fourth Amendment.

A federal court upheld the Order, finding the requirement for a post-incident breath test justified under the “special needs” exception to the Fourth Amendment’s usual requirement for probable cause and a warrant. The Court stated that “to qualify for treatment under the special needs doctrine, the search regime must have a primary purpose that is not a general interest in crime control. If the primary purpose qualifies as a special need and not a general interest in crime control, the Court must apply a balancing test to determine the reasonableness of the search. Reasonableness is determined by balancing three factors: (1) The nature of the privacy interest involved; (2) the character and degree of the governmental intrusion; and (3) the nature and immediacy of the government’s needs, and the efficacy of its policy in addressing those needs.”

The Court found that NYPD had “set forth sufficient evidence demonstrating that the primary purpose of the Order is personnel management – specifically, to deter police officers from becoming intoxicated and discharging their weapons. Armed police officers are given awesome power. The NYPD has a substantial and practical interest in ensuring that its officers, especially its armed officers, are fit for duty.

“Personnel regulations prohibit officers, whether on or off duty, from becoming intoxicated while carrying a weapon. Patrol regulations require that firearms be removed from any member of the service that is intoxicated, either on or off duty. The Order provides the NYPD with the ability to quickly identify officers who abuse alcohol and discharge their firearms. As a result, the Order deters officers from consuming alcohol to the extent that they become unfit for duty. The Order also supplements other procedures already in place to investigate the underlying circumstances of each shooting involving NYPD officers. Also, the immediate confirmation that alcohol is not involved fosters public confidence and eliminates speculation of wrongdoing.

“The unions argue that the breathalyzer test is unreasonable in light of the emotional trauma NYPD officers might experience after discharging their weapons. NYPD officers are without question a category of the bravest and finest public servants, and often must face the consequences of difficult and even potentially life-threatening situations. But the breathalyzer test – even with its immediate post-shooting application – is not an unreasonably traumatic intrusion when viewed in the context of the thorough post-shooting investigation protocol already in place.

“Officers understand that there will be an administrative investigation into each instance in which they must discharge their firearms. Officers also understand that they will be subject to a five-minute breathalyzer test every time they discharge their weapons and someone is injured as a result. It is a brief, mandatory process. The breathalyzer test is uniformly conducted and is neither arbitrary nor oppressive. The test is conducted immediately to quickly lift the cloud of any suspicion that an officer has acted improperly.”

Palladino v. City of New York, 870 F. Supp. 2d 350 (S.D. N.Y. 2012).