Detective Shooting Places NYPD Breath Test Policy under Scrutiny
While breath tests are often the central part of a DUI arrest and criminal defense, these tests are not just used by the highway patrol for DUI suspects. Many jobs require employees to pass a breathalyzer, especially jobs that involve delicate equipment or public safety.
Of course, few companies would condone employees showing up to work drunk, but the need for certain classes of employees to be verifiably alcohol-free would seem obvious. You wouldn't want a construction worker operating heavy machinery, or a lab scientist working with chemicals, to be inebriated on the job.
The New York City Police Department recently instituted a breath test policy for officers involved in shootings, a policy that on the surface makes good sense. When you consider all of the abovementioned occupations that might benefit from a breath testing procedure, an armed police officer would be the one occupation that might require this policy above all.
However, one nuance of the regulation is causing a dilemma among NYPD officials authorized to enforce penalties for failing to pass the breath test after discharging a firearm: the breath test is applicable for both on-duty and off-duty officers.
Consider the case of a detective who recently intervened in a beating outside of a nightclub in Queens. When one of the four assailants fired at the officer, he returned fire, wounding the shooter with the 9mm pistol that he is authorized to carry while off-duty. However, when the detective was tested for BAC per the alcohol policy, he registered a 0.09 percent BAC, slightly above the legal limit of 0.08 percent.
Because of the violation of the alcohol policy, the officer was suspended pending investigation. Of course, strict adherence to regulations is important when it comes to internal law enforcement discipline to maintain public trust. The officer Patrol Guide suggests that officers refrain from carrying a firearm if they anticipate drinking to the point of becoming "unfit for duty"—though it seems to leave that phrase up for interpretation by the officer in question.
But tough questions are raised concerning the scope of the off-duty officer's obligations: How would an off-duty officer know how much is too much to drink? Should an off-duty officer who is drunk let a robbery or beating or other crime occur without intervening? After how many drinks should an officer refrain from intervening?
And this is to say nothing of the civil liability that a police department could be facing if the officer were to use excessive force or improper procedures while intoxicated. There's a fine line to be walked by the concerned police department, and the NYPD seems to be doing the only thing it can in the situation: take the officer off the streets, at least temporarily.
