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| There are NYS jury instructions about DWI (chemical) breath testing |
Getting the jury instructions right and ensuring that the jury understands them is a concerted effort. The defense attorney must outline and argue their defense in light of and in accordance with the law. The law is the instructions. The instructions are the legal definitions of impairment, of intoxication, of operation, and accurate testing. It is in fact what they should consider with each and every element of the DWI case.
What must the jury be instructed about chemical (breath) testing?
What can the jury consider when looking at the chemical test result number (BAC)?
New York Breath Test Cases Need to be Defended from the Standpoint of This Case this Time
Remember that in New York State the police only give ONE breath (chemical) test ONE time. The one at roadside (aka the PBT, preliminary breath test) is inadmissible for a BAC number in a DWI case. One test, one time means that test has to be shown accurate on the date and time in question.
At their CORE jury instructions are really about how the jury should weigh, value, and interpret the evidence in a case.
New York DWI Jury Instruction for the breath test:
"In considering the ACCURACY of the results of any test given to determine the alcohol content of defendant's blood you MUST CONSIDER:
1. the qualifications and reliability of the person who gave the test (the BTO, breath test operator);
2. the lapse of time between the operation of the motor vehicle and the giving of the test;
3. whether the device used was in good working order at the time the test was administered;
4. whether the test was given properly. "
The first question is easy for the prosecution to answer YES to because the officer by virtue of just having a breath test license is presumed to have been qualified and reliable.
The third question of the device (the machine) in good working order is also usually easy because even if it was calibrated months prior, court shave said this is a good working machine.
The real points of contention on breath testing are question 2: lapse of time and question 4: properly given.
There is a time of driving and a time of testing. They always have a gap. How much or how little is dependent upon the police.
How Much Time Do the Police Get to Give a Breath Test to Someone Arrested for DWI?
Under New York State law, health guidelines, machine guidelines, and general consensus it is supposed to happen within TWO HOURS. Does it always? NO. Many years ago New York cases and breath test results were dismissed if it wasn't. New case law on time of driving versus time of testing allows (permits) ANY amount of time to pass.
If the Time Between Breath Testing and Driving is Over Two Hours the Jurors Get Yet Another Instruction (maybe?)
The thing is older tests (beyond two hours) can get a corrective INSTRUCTION from the judge to the jury that they can take that into consideration when weighing the breath test evidence and the NUMBER. See another jury instruction about yet another aspect of the evidence.
Was the BAC at the Time of Driving Higher or Lower?
You see there is this other thing called EXTRAPOLATION. From the time of driving to the time of testing we can either have a rising BAC number in the body or a falling BAC number in the body. It depends upon the time of drinking, the last alcohol consumed, etc.
Many factors would be needed to extrapolate a BAC accurately. You can NOT know for a certainty whether the BAC was higher or lower at the time of driving just based upon ONE test ONE time post driving. So it could have been higher than the as tested number or lower than the as tested number.
In my next post we will discuss the last main New York DWI jury instruction on the legal definition of intoxication.
Lawrence Newman is a partner in Newman and Cyr which focuses on DWI and criminal defense in the Fingerlakes region of New York State. contact larry@ithacacdwi.com
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