Tuesday, October 30, 2012

New York State Police Use the Draeger Alcotest for DWI Arrests: Potential Defense Issues

2012 Certification on the Draeger


New York State uses a variety of breath alcohol testing devices to prove DWI (Driving While Intoxicated) crimes. In the Boroughs, and downstate (Queens, Manhattan, Brooklyn, the Bronx, Staten Island, Long Island) they utilize the Intoxilyzer 8000.


Law enforcement in Upstate New York Towns, Villages, and Cities use the Datamaster DMT. The state police love the Draeger Alcotest, which comes in two models the 7110 and 9510. By far the Draeger is the state of the art unit. It has dual sensor technology (two forms of testing) consisting of an electrochemical (fuel cell) system and an Infrared System.

What's in a name?Is it an Instrument, a Device, or a Machine?

The police, the prosecutors, and the manufacturers love to call them "instruments" but many of us in the defense community just loosely refer to them as "machines." At the certification class I just attended the instrument creator, and vice president of Draeger, Hansueli Ryser (I kept thinking Hans Solo from Star Wars) got upset that I referred to it as a machine, he said "Larry it's an instrument not a machine." I can understand the sensitivity, afterall I would not want my instrument which measures blood alcohol concentration to an accurate degree referred to as a mere machine just as the late Steve Jobs would not want his iphone referred to as a phone.

Evidential Breath Testing BUT does it Equal "Valid" and "Accurate" Evidence 

They are technically and more importantly legally recognized as evidential breath alcohol testing units. The evidential means that they have been approved, certified, and most importantly recognized to yield results that can be used in Court as "evidence" and as "proof" of the BAC (blood alcohol concentration) at the time (or there abouts) of testing.

This proof can be used against you to prove you were Driving While Intoxicated or Driving While Impaired in New York State. The list of approved devices is huge. These are just the best of the lot and the ones used in New York State. 

The Issues with Breath Testing

As great as these units are they have their limitations and issues. Just like any computer or microprocessor based system, garbage in yields garbage out. 

1. Must have a Good Sample of Breath.

One of the most important aspects of breath testing is gathering a sufficient, clean, and accurate sample of breath. There is a mandatory period of uninterrupted and continuous observation of the person before blowing into the unit. This is a big point of contention (defense) in many states with breath testing. Police observation in the back of police car (cruiser) prior to testing does not count. Leaving the subject in the room unattended does not count. Turning around to do paperwork does not count. 

Uninterrupted means uninterrupted.
Continuous means continuous.
In New York State it is a 20 minute period of time for this observation and not one minute less.

2. Biological Variables Person to Person

The units are set for the average person with an average basal (body) temperature with an average breath. Even the best of units will have a range of error just based upon this. They say the average person is Chinese, a female, and dead so averages can be deceiving and wrong.

3. The BIG Assumption

The biggest assumption with evidential breath testing is that the subject is done metabolizing alcohol. In other words you (and your body) are beyond the absorption phase. Your body has completely absorbed all the alcohol consumed and NOW you are completely in the elimination phase of alcohol. Why is this fact so important? Because prior to complete elimination your body will have varying concentrations of alcohol between the breath, the blood, the lungs, and cardiovascular system.

All of this is based upon Henry's Law which basically states that in a closed system of liquid and gas eventually the concentration of the molecules of a substance in the liquid will be equal to the concentration of the molecules of the substance in the gas above it. In the realms of breath alcohol testing we have BREATH (the gas) and BLOOD (the liquid).

From thescubastop.com

For illustration, #1 is one to one ratio (balanced), then #2 we have increased alcohol concentration in the lung (breath) tissues during the alcohol absorption phase, then #3 balanced alcohol in lung (breath) and blood in elimination (expiration) phase.

So in the absorption phase (#2) we have an unequal concentration of alcohol in gas (breath) and alcohol in blood (blood alcohol concentration). In fact in the absorption phase (#2) we have a higher BAC in the breath (cardiovascular/lungs/heart) area of the body and a lower BAC in the blood system.

So no matter how good a machine/instrument/unit/device we have these areas of contention. The human variables are always present without even getting into the problems with an accurate measurement.

Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

Originally, born and raised in Brooklyn, NY. My father was a NYS corrections officer, and my mother a waitress. I now live in Ithaca, NY with my wife (of 25 years), and four kids. I have a B.S. in Human Biology, Doctorates in Law and Chiropractic, and a Post Graduate in Acupuncture. I practiced as a Chiropractic Physician in Florida from 1986 to 1995. I graduated law school in 1997, and went on to practice trial law in FL, NY, NJ, and PA. I love practicing criminal defense and injury law within the Finger Lakes Region of New York State.

Over 90% of the cases that I take on are New York DWI defense cases. I am certified as a breath tester by the Department of Transportation, the guidelines of the International Association of Chiefs of Police (IACP), and the National Highway Traffic Safety Administration (NHTSA). I am certified in Field Sobriety Tests, and an active member of the National College of DUI Defense (NCDD). My online materials include over 450 blog posts, dozens of articles, and over 440 informative videos on my youtube channel.

I have co-authored Strategies for Defending DWI Cases in New York, in both 2011 and 2013. These are West Thomson legal manuals on New York State DWI defense, and focus on the best practices for other lawyers handling a New York DWI case. Included in Strategies for Defending DWI Cases in New York are materials I provide clients, such as my fee agreement and ways to avoid misdemeanor probation. I was selected by Super Lawyers as a Upstate New York 2013 Rising Star in DWI/DUI Defense based on my experience, contributions, and professional standing.

Dr. Lawrence Newman
Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850