If you are arrested for Driving While Intoxicated (DWI) in New York, you generally, do not take a chemical test of your breath, blood or urine for up to two hours after your arrest (if you in fact take the test). Therefore, while the test you take (usually a Breathalyzer of some type) provides an alleged Blood Alcohol Concentration (BAC) at the time you actually take the test, it does not, nor could it, determine your BAC at the time you were actually driving. Nevertheless, in New York, if your BAC is over .08 based upon a test given within two hours after your arrest, you are guilty of Driving While Intoxicated based upon a BAC in excess of .08 (VTL 1192(2)).

Typically a motorist arrested for a New York DWI is asked to take a Breathalyzer. However, if a serious accident has occurred with serious injuries and/or death, the suspected intoxicated driver will many times refuse to take a Breathalyzer, blood or urine test. Even if they consent to a Breathalyzer, the Police, in such circumstances, may still seek a blood test. Where there are serious injuries or death involved and the suspected intoxicated driver refuses to submit to a chemical test, the police and/or District Attorney’s Office will seek a court order signed by a judge compelling the driver to submit to a test – usually a blood test.
It can take a long time to get a judge to sign an order compelling the driver to submit to a chemical test. As a criminal defense attorney, experienced with DWI matters, I was once involved with a case in which my client was not tested for 19 hours after the fatal accident. During this delay, the driver is eliminating alcohol from his system. How then, can we know the driver’s BAC at the time he was driving if the test was given many hours (even up to 19 hours) after he was driving?

In these situations, prosecutors attempt to utilize a process called Retrograde Extrapolation (RE) which attempts to determine what one’s BAC was at an earlier time based upon their BAC at the time they were tested. In other words, if the subject’s BAC is .05 at midnight, prosecutors would argue that RE analysis can determine what their BAC was at say, 8:00 p.m. There are problems, however, with RE analysis which I will discuss in future blogs.
If you have been involved in an accident where someone was seriously injured or killed and it is alleged that you were Driving While Intoxicated, you need a law-firm experienced in defending both DWI and homicide cases and knowledgeable in both the law and science involved with such cases. For those involved with a DWI that involved serious injury or death, contact Tilem & Associates.

Contact Information