DWI Breath Test
As a fundamental requirement for the admission of breathalyzer test results in a prosecution under Vehicle and Traffic Law section 1192, the prosecutor must introduce evidence from which the trier of fact could reasonably conclude that the breath testing device was in proper working order at the time the test was administered to the defendant.
Proof that the test operator was certified by the Health Department to conduct breathalyzer tests, while permitting the inference that the test was properly given, is not probative of the distinct foundational requirement concerning the accuracy of the machine.
Before the percentage of alcohol can be considered, the prosecutor must show that the arresting officer had reasonable grounds to believe that the defendant was operating a motor vehicle while he was intoxicated, or that the arresting officer gave the defendant a breath test to determine if the defendant had consumed any alcohol. Evidence must also be presented to show that the breathalyzer test was performed within two hours of arrest, since a test conducted more than two hours after arrest is stale.
Evidence must be introduced both that the breathalyzer was in proper working condition when the test was given to the defendant, and that the chemicals used in the test were of the proper kind and in the proper proportion.
Attorney for the DWI Breath Test in Manhattan
Breath test results constitute a powerful but not conclusive evidence of guilt in a DWI case. If you were arrested for DWI in Manhattan or in New York City then contact an experienced criminal defense attorney at Greco Neyland, PC.
Find out how we investigate the breath test to determine whether there are any grounds to ask the court to suppress or exclude the results at trial.
Legal Limit in New York Drunk Driving Cases
New York uses sevearl different BAC levels for pre se offenses of drunk driving which are as follow:
- 0.08% for an adult;
- 0.04% in a commercial motor vehicle; or
- 0.02% for a driver under 21 years of age (under New York’s Zero Tolerance Law).
Attacking the Breath Test in a DWI Case
During a trial, the criminal defense attorney will impeach the test accuracy and reliability by various methods, including the introduction of extrinsic evidence demonstrating possible sources of machine malfunction and by cross-examination of the law enforcement officer who administered the breath test in order to show operator error.
Proof of a breathalyzer reading of .08 or more within two hours after arrest establishes prima facie, a violation of Vehicle and Traffic Law § 1192(2), which, together with evidence of one or more of defendant’s deportment, speech, stability and the odor of his or her breath, is sufficient to sustain a conviction, absent evidence, expert or other and by whichever party produced, from which the trier of fact could conclude that defendant’s blood alcohol content (“BAC”) at the time of vehicle operation was less than .08.
Finding a Breath Test DWI Lawyer in Manhattan
If you were arrested for DWI after submitting to a breath test on a breathalyzer machine, then contact an experienced criminal defense attorney at Greco Neyland, PC. Our attorneys are experienced in representing clients in DWI cases and DWAI cases. Whether this is your first drunk driving offense or a second or subsequent drunk driving offense, call us to discuss your case.
We help clients with a BAC between .05 and .07, .08 and .17, and over .18. Let us put our experience to work for you. Call (212) 951-1300 to discuss your case today.
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New York, NY 10017
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Experience as a former prosecutor gives Jeffery Greco an edge in building the strongest possible defense strategy for the accused in New York City.
A thorough investigation is key to finding every reasonable doubt and getting charges reduced or dismissed for NYC defense attorney Dustan Neyland.
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