There are really three possible DWI breath test defenses:
ONE: Problem with the machine working properly. This includes proper chemicals, maintenance, calibration, and servicing.
TWO: Problem with the person giving a sample of breath. They have diabetes, GERD (gastro-Esophageal Reflux Disease), or something else that would have caused a contamination of breath alcohol with other alcohol or ketones.
THREE: Problem with test administration.
This blog post concerns this issue specifically.
Over my years defending cases I have had all three. I have seen improperly working machines, ones that also refused to take samples, and ones where the chemicals used were too old (expired). I have had clients with diabetes, blood diseases, GERD, and protein breakdown into ketones (by products) caused by fasting. Finally, I have had tests improperly given.
In New York State there is a legal presumption that the test was given properly IF the law enforcement officer giving the test had a valid breath test license. Kinda like, if you drove to my house we could assume you did so legally and properly because you hold a valid driver's license. This may not be fair or just but this is the law.
So how do we contest the test this way. Sometimes we have video of the test. We may not have audio but we may have a nice video. This will show us a few things:
1. The time that was spent prior to testing watching (the observation period) you. Was it truly continuous and uninterrupted for 20 minutes?
2. The way you acted and behaved just prior to testing. Were you belching, vomiting, or regurgitating any stomach contents?
3. Did the police check inside your mouth prior to having you blow into the breathalyzer?
If they failed to do any of the things or didn't do them well then your attorney could request (demand) an Ayala Hearing. This comes from the case of People v. Ayala, 89 NY 2d 874 (1996).
1. It is for a DWI case to have a hearing about your breath test;
2. It is to challenge the admissibility of the breath test into evidence;
3. It is based upon evidence that the test was not administered properly by the police.
I have seen videos where the police were not even watching the subject (the accused) during the 20 minutes leading up to the test. Sometimes they completely left the room. I have seen video where the person was visibly upchucking and then they tested them. I have seen videos where they never checked the mouth a all prior to having them blow into the machine.
If the breath test is found NOT admissible, one DWI (the breath one) charge will be dismissed completely. This may be the .08 BAC or even a .18 BAC charge. Then you only have a common law DWI case to fight.
If we can show a Judge that the police didn't follow their own rules then perhaps we can keep out this damning (but flawed) evidence.
Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.
The 9 Most FAQ About NY DWI, here:
The New York Up State DWI Survival Guide, here:
Winning The NYS DWI Refusal Case, here:
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.