January 13, 2014


Police Unions Lose 2nd Post-Shooting Breathalyzer Battle


PATRICK J. LYNCH: Right to bargain rejected.  

A state trial court has rejected a lawsuit by two police unions challenging the NYPD’s policy of requiring Breathalyzer tests for officers who kill or wound a suspect in a shooting.

State Supreme Court Justice Paul Wooten ruled that the policy was necessary to enable the department to “investigate accusations of malfeasance as a matter of public policy and safety.”

Challenged by PBA, SBA

The suit was filed by the Patrolmen’s Benevolent Association and the Sergeants’ Benevolent Association.

The policy was instituted after the 2006 shooting death of Sean Bell by officers who had been investigating allegations of prostitution and other illegal activities at a Queens bar. Among questions raised by the incident was whether the undercover Detective who fired the first shot had been drinking to excess before the shooting. NYPD policy allowed undercovers to consume up to two drinks.

The unions also fought the policy in Federal court. An appeals court upheld the rule last November.

Of all the 15 to 20 officers who have undergone the Breathalyzer to date, none has registered above the .08 blood-alcohol level that indicates intoxication, according to the ruling by the Federal appeals court.

The unions also fought the policy in Federal court. An appeals court upheld the rule last November.

Cited Bargaining Law

In the Federal case, the unions argued that the Breathalyzer policy violated the U.S. Constitution’s guarantees against unreasonable search and seizure. In state court, they contended that collective-bargaining rules mandated that such a policy could not be imposed without negotiations.

“These tests are plainly necessary for the same reason that train and bus operators are routinely tested for drugs and alcohol when they are involved in an accident,” stated a blog maintained by the law firm of Lumer & Neville, which handles civil-rights and police-brutality cases.

A spokesman for PBA President Patrick J. Lynch said the union was considering whether to appeal Judge Wooten’s decision.