Legal expert: When should officers perform a breathalyzer test?

ROCHESTER, N.Y. (WHEC) — We’ve gotten several questions on when a police officer should administer a field sobriety test if someone gets in an accident and what the proper protocol is.

“That depends on what they see when they arrive at the scene,” said attorney with Santiago Burger LLP Michael Burger.

Burger has been involved with many cases involving car accidents and says officers are trained to look for signs of impairment and if they exist they should proceed to field sobriety tests.

“An accident can happen of course when someone is completely sober,” Burger said. “People are sober still get into accidents a blown tire, a deer or whatever there are other factors police are supposed to consider to do a breathalyzer or do other sobriety or field sobriety tests.”

Monroe County Police departments participate in the state’s Stop DWI Program, under Article 31 of New York’s Vehicle & Traffic Law in section 1194 is: Arrest and Testing.

It says any officer with "reasonable grounds" to believe that a person has been operating a motor vehicle after having consumed alcohol can have grounds to administer a breathalyzer test.

That includes any visible or behavioral indication of alcohol consumption by the operator, the existence of an open container containing or having contained an alcoholic beverage in or around the vehicle driven by the operator, or any other evidence surrounding the circumstances of the incident which indicates that the operator has been operating a motor vehicle after having consumed alcohol at the time of the incident.

“Including whether the person seems to be disheveled, if they have bloodshot, watery eyes, if their speech is slurred, if they are unable to steadily walk,” Burger said. “If their actions are of those of a dunk person or looks like they’ve been drinking.”

Burger said sometimes if someone is injured, they may display similar actions but says police can administer to determine whether or not they are under the influence.

“For instance, if someone hits their head in an accident they might be slurring their speech, they might be having a stroke so the police or officer on the scene is supposed to look at all those circumstances in their totality and then make a decision as to whether further investigation is warranted," Burger said. "That should be the case whether or not the person is a public official or a private citizen like you and me.”

News10NBC did reach out to the Greece Police Department to get a copy of their protocol for field sobriety tests, but we have not heard back yet.