Fighting a New York DWI Arrest Based on Breath Testing

New York DWI Attorneys know that it is one of the worst nightmares for many motorists; the image of those red and blue lights approaching from behind as you are on your way home from dinner or a party. It doesn’t matter if you have had only one drink, or if it has been hours since your last; being pulled over for a New York DWI while having even the slightest bit of alcohol in your system is a terrifying experience.

Part of the reason why drivers fear being pulled over is the uncertainty. Most people do not get behind the wheel when they know they have had too much to drink. Indeed, the majority of DWI arrests are for drivers who thought they were below the legal limit, but that ended up not to be the case. However, what many people do not realize is that there is a lot of subjectivity that goes into a New York DWI arrest.

First is the issue of whether a police officer has the legal ability to stop a car and administer a breath test. Police officers need to have a justifiable reason to pull a vehicle over. Once a car pulls over, a motorist can only be asked to take a breath test if police have reasonable suspicion to believe that they were driving under the influence. If the police ask for a breath test and a driver refuses, then they are subject to administrative penalties, including a minimum one-year license revocation for the first time and a minimum eighteen-month revocation for subsequent refusals.  In addition, a police officer may ask a motorist to take a portable breath test on the side of the road.  While the results of such a test would not be admissible at a DWI trial, the results may lead a police officer to request a chemical test at the station and refusal to take the portable test is a traffic infraction punishable by 2 points on your license.

In a perfect world, a breath-testing machine could actually get a motorist off the hook if they were shown not to be intoxicated. However, that is rarely the case. First, as a recent New York Times article reports, breath testing machines are woefully inaccurate and frequently over-report the presence of alcohol in a subject’s blood. In part, this is because these complex machines are being used and maintained by police officers who have no knowledge of the technology involved. Thus, machines are frequently out of calibration or improperly used, leading to inaccurate results.

Another reason why “passing” a breath test is not likely to result in the driver being let go after being stopped for a DWI is that an officer does not need a “failed” breath test to arrest someone for DWI. Breath tests only test for alcohol, so if a police officer believes that someone is under the influence of another substance, they could still arrest them, or ask them to submit to a blood test. Finally, drivers who do not show a positive for any test can be charged with Driving While Ability Impaired (DWAI), which only requires “some evidence of impairment” or be charged with what is known as “common-law” DWI for operating the vehicle in an “intoxicated” condition without regard to the blood alcohol level. See VTL sec.  1192(3).

Have You Been Arrested for a New York DWI?

If a police officer thinks someone is under the influence, they can arrest the driver for one or more offenses. However, the prosecution’s ability to prove a case at trial is a different story. There are many ways to beat a New York drunk driving case, and those who have been charged with a New York DWAI or DWI should consult with a dedicated criminal defense attorney to discuss their options. If you have recently been arrested and charged with a New York DWI or DWAI, contact Tilem & Associates. At our New York criminal defense law firm, we represent clients facing all types of serious drunk driving offenses. To learn more, and to schedule a free consultation today, call 877-377-8666.

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