From a purely legal perspective, the answer is “yes.” Like most states, New York has a per se DWI law. Defendants who have a BAC level above the legal limit, which is .08 in most cases, are guilty as a matter of law.

But from a practical perspective, the answer is “no.” Breath tests, which are the most common form of chemical tests, have a number of inherent flaws. The same is true of DWI blood tests, albeit to a lesser extent. An experienced Rochester, NY DWI attorney knows how to take full advantage of these flaws, which are outlined below.

From any perspective, the stakes are very high. In 2017, New York peace officers arrested roughly 28,000 drivers for DWI or another alcohol-related criminal offense. Even a first-time DWI carries significant direct penalties, like drivers’ license suspension, and dire indirect penalties, such as sky-high auto insurance rates.

Some Basic Breathalyzer Flaws

During the trial, police Breathalyzer technicians often try to dazzle jurors with talk of advanced fuel cells, photochemical reactions, and other high-sounding scientific terms.

But strip away all the bells and whistles, the Breathalyzer is basically a 1950s Drunk-o-Meter. Both these devices measure breath alcohol level to estimate blood alcohol levels. That extra step, along with the ancient nature of this technology, often gives rise to a number of flaws, such as:

Mouth Alcohol Level

If the defendant burped or belched even a tiny bit in the fifteen minutes before the test, that action releases millions of extra ethanol particles into the mouth. So, the Breathalyzer’s BAC estimate may be artificially high.

Unabsorbed Alcohol

Most alcohol goes from the stomach to the liver to the blood, instead of directly from the stomach to the blood. So, if the defendant has been drinking in the past couple of hours, the body has not digested most of that alcohol. Once again, the BAC estimate may be inaccurate.

Acetone Level

Everyone has some acetone in their bodies. Some people, such as smokers and diabetics, have elevated acetone levels. Since the Breathalyzer registers acetone as ethanol, the BAC estimate may be off.

These flaws are especially important in a .08, .09, or another borderline BAC case. To drive home these issues with the jury, many Rochester NY DWI attorneys partner with degreed chemists. These experts are much more persuasive than the Breathalyzer techs that prosecutors rely on.

Rochester, NY DWI Attorneys, and Common Blood Test Issues

Sample preservation is another Breathalyzer issue. After this gadget estimates the test subject’s BAC level, it does not retain the breath sample. So, there is no way to evaluate it scientifically. But DWI blood tests do preserve the chemical sample.

So, a Rochester, NY DWI attorney can usually request a second examination. When an independent lab analyzes the blood sample, it often comes to a different conclusion from the police lab that had the first crack at it.

Many other DWI blood test defenses are procedural. For example, police officers must obtain search warrants before they extract blood samples. These warrants must be based on probable cause, which usually comes from field sobriety test results. But sometimes, officers rush things. They request blood samples before the defendant performs the FSTs. Therefore, there may be a lack of probable cause.

The chain of custody may be an issue as well. Most blood samples travel from clinics to laboratories to police stations to courtrooms. If there is any gap in the chain of custody, a Rochester, NY DWI attorney could successfully challenge the blood sample’s validity in court.

Count on an Experienced Lawyer

Chemical tests are not always conclusive. For a free consultation with an experienced Rochester, NY DWI attorney, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.

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