DWI arrest & BAC level
In a DWI arrest the police will need to use a method to test the Blood Alcohol Content (BAC) of a driver’s blood to determine if the driver is intoxicated or impaired after consuming alcohol. The most common method is to have the motorist blow into a machine to test the alcohol level in the motorist blood. The machine looks like a large computer and has a keypad in the front. After blowing into a tube for a few seconds the machine will test the motorist’s breath and submit a result to the police. The machine’s calibration in any DWI test must be investigated and attacked.
Proof of Breathalyzer Calibration
In New York State the proof necessary by the prosecution in a DWI case is that the Breathalyzer was in proper working order at the time the test was administered to the motorist. The prosecution has this burden at trial and must prove this element beyond a reasonable doubt. The prosecution typically introduce into evidence a document entitled “record of calibration/maintenance.” This is also called the certificate of calibration of the Breathalyzer.
What is a Calibration?
In the field of DWI defense “calibration” refers to the inspection, calibration and repair of the breath test devices by specially trained technicians at facilities such as the New York State Police Crime Laboratory or the New York State Division of Criminal Justice Services Office of Public Safety. This calibration is NOT the weekly test conducted by the police officers at the police station. This is a much more complex test for calibration.
Suppression of a Breath Test due to Calibration
In People v Todd, 79 Misc.2d 630, a breathalyzer had not been calibrated for six months and the People failed to establish that the breathalyzer apparatus had been timely calibrated hence the results of the test were inadmissible. It is incumbent upon the District Attorney to show that the machine was in proper working order.
Todd Six Month Calibration Rule
Although lower courts have expanded the six month rule with respect to the calibration of a Breathalyzer the Court of Appeals has never reversed or altered its six month rule. This is something that the best criminal defense DWI lawyers must investigate when defending a DWI arrest.
New Breathalyzer Machines
The New York State Police have chosen to calibrate their newest breath test device, the Draeger AlcoTest 7110 MK III (Draeger) only one a year. Regardless the prosecution must lay a sufficient foundation as to the reliability of the Draeger. The Todd rule should apply and the government can present expert witnesses to prove calibration.
DWI Defense Lawyers
At Proto, Sachs & Brown, LLP our DWI defense lawyers investigate every aspect of a DWI arrest. The best DWI defense will take advantage of every opportunity to limit the government’s case or have the case dismissed outright. The calibration of the breathalyzer is only one part of the defense to a chemical test of a motorist’s breath test but an important part since the local police have no control over the calibration and usually have no idea how the machine is calibrated.
Free Consultation on all DWI arrests and cases
To have your case reviewed for Free call our office. We represent clients in Westchester, Orange, Rockland, Putnam, Bronx & Dutchess Counties. Our attorneys are former prosecutors and dedicated to reviewing your matter and providing you with the best criminal defense. The Breathlyzer calibration is an important part of a DWI criminal defense and our Westchester County DWI lawyers will review your case, identify the best defense and give you candid straightforward advice.