Judge upholds NYPD's breathalyzer policy

Thu Jun 28, 2012 10:15pm EDT

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(Reuters) - A federal judge on Thursday upheld the constitutionality of the New York Police Department's mandatory practice of administering a breathalyzer test to any officer who fires a weapon that results in an injury or death.

The department instituted the policy in 2007 - a year after the controversial killing of Sean Bell, who was shot to death by undercover NYPD detectives after leaving his bachelor party at a strip club in Queens on the eve of his wedding.

At least one of the officers involved in the shooting said he had earlier drunk two beers at the club, although he was not given a breathalyzer test.

New York police union officials challenged the policy in a lawsuit, arguing that the officer's Fourth Amendment right to privacy trumped the department's need to determine whether officers who discharge their weapons are intoxicated.

U.S. District Judge George Daniels rejected that argument, comparing the policy in his ruling to several other so-called suspicion less searches which have been upheld by the U.S. Supreme Court. These include random drug testing of athletes, sobriety checkpoints for drivers, and drug and alcohol testing for railway workers.

Neither police union officials nor NYPD officials immediately returned calls for comment.

On the night Bell was shot, seven undercover officers had been in the strip club as part of a vice squad investigation into complaints of prostitution.

Police feared a gunfight might break out following an argument outside the club. Undercover detective Gescard Isnora followed Bell and his friends to their car and approached the vehicle with his gun drawn. He told the men to get out of the car.

Bell instead hit the accelerator, grazing the officer's leg and crashing into an undercover police minivan arriving as backup.

Isnora thought he saw one of the men in the car reaching for a gun, and yelled "gun." Five detectives fired a total of 50 shots into the car. Bell was killed and his two friends were seriously wounded. No gun was found at the scene.

Three of the five detectives went to trial on charges ranging from manslaughter to reckless endangerment and were found not guilty. The incident led to a public outcry against the department.

Undercover NYPD officers are allowed to have two drinks while inside a bar during an operation, in order to protect their identity, according to NYPD policy. Isnora said he drank two beers inside the club that night and was deemed fit for duty by a superior officer on scene, police officials said.

He was never given a breathalyzer, which measures alcohol in the bloodstream.

(Reporting By Chris Francescani; Editing by Tim Gaynor)

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