What to know about Breathalyzers and challenging results

On Behalf of | Nov 19, 2021 | Dwi

Statistics from the NHTSA show that drunk driving causes a third of fatal traffic accidents. To combat drunk driving, police officers can pull over suspected drunk drivers and give them a Breathalyzer test. If drivers in New York think the test is wrong, they may challenge it in court.

Overview of Breathalyzers and DWI

Drunk driving in New York falls under driving while intoxicated, known as DWI, or driving while ability impaired, known as DWAI. A Breathalyzer measures the BAC, or blood alcohol content level, of the driver to check for DWI.

If a standard driver registers 0.08, they can get charged under “per se,” meaning no other evidence is needed. The limit is set at 0.04 for commercial drivers and 0.02 for drivers under 21 under zero-tolerance laws in the state. DWAI charges further divide into alcohol DWAI, drug DWAI or a combo DWAI, and the driver only needs a 0.07 BAC to be over the legal limit.

Challenges to Breathalyzers

One defense to a Breathalyzer is a health condition such as GERD or diabetes, which can produce ketones and acetones with alcoholic properties. Ketones and acetones can throw a device off if it is not advanced enough to distinguish between them and alcohol.

A Breathalyzer also must be calibrated, which means testing the sensor for accuracy, or it will give inconsistent readings. The defense may access the records through a subpoena to determine if the device has been calibrated and which brand the officer used. The device also must be on the accepted brand list, so the test results could get thrown out on that alone.

An officer needs probable cause to make an arrest and not just based on hunches or whims. They need reasonable suspicion to pull a driver over, and the absence of either element could dismiss test results.

Refusing a Breathalyzer in New York can include an automatic six-month to one-year license suspension and a $500 fine. It is often wise to take the test, but drivers don’t have to agree with results.