Most New York DWI Charges are "Per Se" BAC based Charges
Most New York State DWI charges have an associated chemical test of blood or breath. The chemical testing of breath samples are behind the most common New York State DWI charges. Remember Driving While Intoxicated can be proven two ways: common law by observations and testing of your behavior and per se by a specific amount of alcohol in your body close or at time of driving.
There is a margin of error with any testing, especially scientific testing of samples. The question is what is an acceptable margin of error in NYS DWI Breath Testing?
Everyone Agrees About One Thing with New York Breathalyzers
The breathalyzer (Datamaster, Draeger, Intoxilyzer) all have an inherent margin of error of one-hundredth of a percentage point. That means if the machine registers you at a BAC (blood alcohol concentration) of .10 reading you could conceivably have an actual blood-alcohol level of .09 percent, an amount of alcohol below the level required to prove New York State legal intoxication, or a level of .11 percent. Just based upon percentages the margin of error should decrease with more samples but what about your DWI case?
Can We Use Margin of Error to Show Reasonable Doubt in DWI?
With any criminal charge like DWI you must be proven guilty beyond a reasonable doubt. Couldn't an error in breath testing create that reasonable doubt? Is the number, the BAC accurate in your case?
- Couldn't margin of error factor into rebutting (challenging) presumption of .08 being DWI?
- Couldn't margin of error factor into how the breath test evidence of intoxication is weak?
- Couldn't the margin of error be brought up with all of the other factors to question the plausibility of other factors accounting for lack of coordination, slurring of speech, or bloodshot/ watery eyes?
What New York State Accepts with Breath Testing and Margin of Error
New York State thinks and states in the regulations that this .10 BAC variation higher or lower is inherent, and is also acceptable. We as criminal defense attorneys can argue in our client's favor that the actual BAC was on the lower side. We can also argue that the machine is off by more than that inherent, and acceptable number. Regardless of what we do argue or can argue (the NY state courts actually don't like this). Yes, we sometimes even argue and raise common sense questions even in the face of opposing case law.
My thoughts are most machines spitting out results are not only capable of error but it's to be expected, accepted, and counted on. So shouldn't a jury of people take all that into consideration before finding a person guilty of a crime by machine.
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If you are charged with a crime, we strongly urge you to consult with a local, licensed criminal defense attorney to lessen the possible negative outcomes of a charge --including the potential loss of your freedom.