Is The Preliminary Breath Test Always Used In A DUI Stop?

No, an Alco-Sensor test is not always utilized. Most officers carry such a portable hand held machine which is designed to register whether or not a motorist has any alcohol in their system. This information would then be utilized by the police officer along with his observations and other field sobriety tests to make the decision whether to arrest the motorist.

How Reliable Are Those Tests?

The Alco-Sensor test would not be admissible as evidence of a DWI at trial because it has been found not to be reliable. It is only used for the purposes of determining whether there is enough evidence to make an arrest and request a more formal breath test back at the police station. If a police officer had a positive result on an Alco-Sensor test as the only evidence of DWI in a case, there would not be much of a case.

Do People Often Confuse The Portable Breath Test With The Test Done At The Police Station?

Yes, it happens all the time. Often, when a motorist comes to my office for a consultation and we talk about the evidence that a police officer might utilize against him, a motorist points out that which the police officer told him were the results of the Alco-Sensor test. As I indicated previously those results are not admissible in court. What is admissible is the result of a formal breath test utilized back at the police station which has been held to be reliable enough to admit the results at trial. So it is most important to distinguish between the two.

How And Where Is The Formal Breathalyzer Test Administered?

This would usually be done at a police station where the machine would be set up and a certified breath test operator available.

How Accurate Are Those Breathalyzer Tests?

These tests have been found to be extremely reliable and therefore would be admissible in court. However, it is most important that the machine be properly and regularly calibrated, and that the person who employs the test is properly trained and certified. These are usually ripe areas for cross examination if it is necessary to cast doubt on the results obtained.

Can The Police Get A Warrant For The Blood Or Breath Test If Someone Refused To Take The Formal Breathalyzer Test?

The answer quite simply is yes, either by a search warrant or pursuant to a chemical test order. This usually results after a very serious accident has occurred involving death or serious bodily injury.

How Long Is The Observation Period Before The Formal Breathalyzer Test In New York?

The Department of Health requires a 15 minute observation period, whereas Police Departments usually employ a rule of observation of at least 20 minutes. During that period of time, their main concern would be that a motorist not ingest anything, not regurgitate, had not used mouth wash if they were smoking, and that they did not place anything in their month during that time.

Do Police Officers Typically Abide By Those Rules And Regulations?

Yes, for the most part, police officers do abide by those regulations. It is of course no great inconvenience for them to do so and they would have no reason to take a chance by not utilizing this observation period and jeopardizing the admissibility of the test results in court.

What Factors Might Lead To An Invalid Or Incorrect Reading On A Breathalyzer Test?

In order for a breath test result to be admissible at trial, a proper foundation is required. Therefore the burden is on the prosecutor to prove: (1) that the device was properly calibrated and otherwise in proper working order; (2) that any chemicals used in conducting the test were the proper kind and mixed in the proper proportions; and (3) that the test was properly administered. If any one of these foundation requirements are not met, it could result in an incorrect reading and result.

In addition, any illness such as diabetes may result in an artificially high blood alcohol content would result in an incorrect reading. The ingestion of any liquid such as cough medicine or mouthwash could adversely affect the result.

What Evidence Do Attorneys Review To Potentially Refute The Breathalyzer Results?

In addition to attacking the foundational requirements for the admissibility of a breath test as previously mentioned, the most important thing that a motorist can do in challenging a DWI case which is based on breath test results, is to hire their own expert on the breathalyzer machine who will work hand and hand with their defense attorney to try to find deficiencies in the manner in which the police proceeded. The expert would listen to the testimony of the prosecution expert, review all reports with regard to the breath test machine and then along with an experience defense attorney explore areas ripe for cross examination at trial with the objective of pointing out areas of reasonable doubt as to the reliability of the breath machine’s results.

For more information on Formal Breath Alcohol Test, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (914) 709-7161 today.