Rochester DWI Lawyers
- Romeo & Schmidt:
In every state in the US, a driver with a blood-alcohol concentration (BAC) of .08 or higher is presumed to be legally intoxicated for drunk-driving purposes. Each state has also enacted an implied-consent law. Implied-consent laws provide that every licensed driver within the state is considered to have given his or her consent to chemical testing to determine his or her BAC whenever a law enforcement officer has reasonable suspicion of intoxication. In most states, refusal to submit to such a test results in license suspension or revocation.
While a blood test is arguably more reliable, the breath test for BAC is more commonly used in the field because the testing equipment is convenient to transport and because the test is easier to administer, can be used by nonmedical personnel, is less physically intrusive to the person taking the test and produces results faster. However, under certain circumstances, breath tests can be less than reliable as an accurate measure of BAC.
It is in the best interest of a drunk-driving defendant to retain a criminal-defense attorney who is thoroughly familiar with possible breath-test weaknesses.
History and Science of the Breath Test
The Breathalyzer¨ was invented in 1954 to collect evidence of intoxication by measuring BAC through breath analysis. Since that time, several manufacturers have entered into the breath-analyzer market and the science behind the machine has evolved. The word "breathalyzer" is now widely used to refer to these apparatus regardless of manufacturer. Other terms used to refer to these devices include evidential breath tester (EBT), breath analyzer, breath-analysis product, breath-alcohol analyzer and breath-testing device or machine. In addition to Breathalyzer, common brands include Intoxilyzer¨ and Intoximeter¨.
In very basic terms, the breath-test machine is designed to measure the amount of alcohol in a deep-lung breath sample and to use that amount to determine BAC. The four main scientific methods used in the various machines are chemical analysis, infrared spectrophotometry, gas chromatography and fuel-cell detection.
Breath-Test Vulnerabilities
A drunk-driving defendant, usually through an experienced attorney and often with the help of a scientific expert, may be able to challenge the breath-test results in his or her case. Several different factors may call into question the reliability of the results. Depending on the law of the state in which the drunk-driving charges were filed, evidence of a problem with the test result could make the BAC reading inadmissible in court or, if the BAC is still admissible, could cast serious doubt on whether the reading is reliable.
Arguments a drunk-driving attorney may make to undermine the breath-test results:
* The breath tests' assumption of a 2100-to-1 blood-to-breath ratio may not be scientifically reliable.
* The test was not administered correctly; for example, the administrator did not warm up the machine to the correct operating temperature or ensure an adequately deep lung sample.
* The test administrator was not properly trained or qualified.
* The equipment was not maintained properly, calibrated correctly or cleaned adequately.
* The result was affected by some characteristic of the driver, such as age; lung function; overall strength and size; a disease or condition such as asthma, diabetes, eardrum rupture, ketosis, emphysema, bronchitis, dental issues, fever or harelip; shock or trauma; certain types of special diets; or hiccoughing, burping, vomiting or hyperventilating. Even severe heartburn could have made the breath results unreliable.
* The test administrator did not continuously observe the driver for an adequate period before the test to prevent him or her from putting anything into his or her mouth that could affect the result. For example, a product used in the driver's mouth, such as mouthwash or adhesive, or lip ointment could have affected the test result.
* Police radio operation generated electromagnetic waves, causing radio frequency interference (RFI) with the testing equipment.
* The driver was exposed to a gas or vapor before the test that made it unreliable, such as during painting, floor sanding, varnishing or other activity with chemical exposure. Similarly, an outside environmental cause in the surrounding air could have caused a high breath test result.
This long list of potential problems with breath test results is not close to complete. If a person charged with drunk driving is able to show that something affected the reliability of his or her test results, the state will need to rely more on other types of evidence to prove intoxication. Other types of evidence on which the state may need to rely include witness, officer and driver statements; witness and police observations; or field-sobriety test results.
Conclusion
If your situation involves a breath test to measure BAC, an experienced attorney who is thoroughly familiar with proper testing procedure and the science behind the test may be able to provide valuable assistance.
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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.
- Scibettta, Michael:
If you are injured or arrested or facing a DWI in Rochester, New York or the surrounding areas, make the right choice...hire an experienced criminal defense attorney...
- Rumi, Ferris:
DWI-Drunk Driving & License Suspension charges can have various consequences. Expensive court fines and costs, attorneysÕ fees, skyrocketing insurance rates, and the loss of driving privileges are just a few.
- Thomas Chorletta:
The defense of Driving While Intoxicated cases is a distinct, technical
area in criminal law. DWI cases have special procedural and evidentiary
rules, and are prosecuted differently--as opposed to so-called "regular
crimes," by local District Attorney's Offices sensitive to public
awareness of the problems of drinking/driving.
The defense of drinking/driving cases is evolving, requiring the
practitioner to stay current with evolving police techniques in field
sobriety and breath testing. This also involves knowledge by the
practitioner of the scientific principles underlying breath and field
sobriety testing, so as to effectively challenge the results of those
tests.
While the layman may believe the typical DWI case is "open and shut,"
there are many avenues of attack, both from a procedural standpoint,
and from the standpoint of challenging the admissibility and quality of
the evidence presented.
- Thomas Anelli:
After you have been charged with a violation
related to alcohol or other drugs, it is
important for you to retain representation.
You may represent yourself in court, but
it is not recommended as this kind of violation
is complicated. You could find yourself
in jail very quickly if you are unsure of
what you are doing. The following are the
drug and alcohol related violations in New
York State:
- DWI: Driving While Intoxicated;
.08 BAC or higher or other evidence of
intoxication
- DWAI: Driving While Ability Impaired
(by alcohol); .05 BAC to .07 BAC, or other
evidence of impairment.
- DWAI / Drugs: Driving While Ability
Impaired (by a drug that is not alcohol).
.
- Zero Tolerance Law: A driver who is
less than 21 years of age and who drives
with a .02 BAC to .07 BAC violates the
Zero Tolerance Law.
- Chemical Test Refusal: A driver
who refuses to take a chemical test (normally
a test of breath, blood or urine) can
receive a driver license revocation and
must pay a $300 civil penalty ($350 for
a driver of commercial vehicles) to apply
for a new driver license. A driver who
refuses a chemical test during the five
years after a DWI-related charge will
have their driver license revoked for
one year and must pay a $750 civil penalty
to apply for a new driver license
To explain, alcohol concentration is defined
as the number of grams of alcohol per 100
milliliters of blood, the number of grams
of alcohol per 210 liters of breath, or
the number of grams of alcohol per 67 milliliters
of urine. It should be noted that each of
these three tests is different and conflicting
results can occur. This means that potentially,
your urine test could find you innocent
while your breath test could find you intoxicated.
It is important to note that the legal
limit of .08 is determined at the time the
test was administered, and usually this
is not at the time of driving. It can be
anywhere from 30 to 75 minutes later. Therefore,
a test reading can be off, in relation to
whether the driver was intoxicated while
driving, which is the crime. In other words,
if you had two drinks in 30 minutes, then
left right away, chances are your BAC would
not register the two drinks if you were
pulled over. It would probably only register
one. However, you would not be given the
breath test right there, but instead, at
a later time when your BAC could be higher
since your body has had time to process
the alcohol. As a result, you would be charged
with a DWI even though when you were actually
driving, your body had not registered the
alcohol yet and you were not influenced
by it.
- Thomas Corletta:
The defense of Driving While Intoxicated cases is a distinct and
technical area in criminal law. DWI cases have special procedural and
evidentiary rules, and are prosecuted differently--as opposed to
so-called "regular crimes," by local District Attorney's Offices
sensitive to public awareness of the problems of drinking/driving.
The defense of drinking/driving cases is an evolving one, requiring the
practitioner to staycurrentwith evolving police techniques in field
sobriety and breath testing. This also involves knowledge by the
practitioner of the scientific principles underlying breath and field
sobriety testing, so as to effectively challenge the results of those
tests.
While the layman may believe that the typical DWI case is "open and
shut," there are many avenues of attack, both from a procedural
standpoint, and from the standpoint of challenging the admissibility
and quality of the evidence presented.
- Brian Buettner:
The Controlled Substances Act (CSA) is the federal authority for
regulating the manufacture and distribution of drugs and other
controlled substances. In an effort to uniformly prevent and punish the
abuse of drugs, CSA places regulated substances into one of five
schedules, ranging from the most dangerous drugs in Schedule I to the
least dangerous drugs in Schedule V. w
- Michelle Nobile:
DWI:
1. Have your traffic tickets handy. 2. Try to remember exactly
what happened, why you were pulled over, what the officer asked you
and what you said or did. If you took the breath test, try to
remember what your BAC reading was. 3. List all prior
convictions, except minor traffic offenses. This includes all other
criminal charges. 4. List any outstanding charges, including
traffic tickets, parking, etc. 5. Know your current status: are
you on parole, out on bail, if so, how much? 6. List each time you
were in court on this charge, what happened and if anyone gave your
any papers or if they were mailed to you. Keep the envelope or
make a note of when you received what and bring everything with
you. 7. When is your next court date, in which court are you to
appear and who is the Judge?
- Napier &
Napier:
If you are arrested for a DWI, it is important that you contact
us immediately. A Felony DWI Diversion program may allow you to
have charges reduced from a felony to a misdemeanor.
- Fiandach's NY DWI.com:
Choosing a lawyer requires you to
recognize a stark fact. If you have been
charged with "DWI", you have been charged
with a crime. If you are convicted, not
only may you go to jail, but at a minimum
you will carry a criminal record for the
rest of your life. Even if it is only your
first time. This means that if you ever
change jobs, you will have to answer "yes"
to the question, "have you ever been
convicted of a crime." Further, you may
have to supply details. It is a well
recognized fact that given the choice of
two otherwise equal applicants, employers
will not choose the one who has "an
alcohol history."
- Todd Wisner:
A defendant convicted of any violation of New York's
Vehicle and Traffic Law ¤1192 will face adverse
consequences to his drivers license, a fine, increased
insurance rates for several years, and a record with the
Department of Criminal Justice Services for life. In
addition, the defendant faces the possibility of
incarceration, the length of which depends on the charge.
While incarceration is more probable in misdemeanor and
felony convictions than with a criminal violation of
¤1192(1) (more colloquially referred to as Driving While
Ability Impaired) even though even that charge carries with
it up to 15 to 30 days incarceration. New York laws in this
area are subject to frequent change and we ask that you
call for an appointment to discuss what penalties you might
presently face.
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