Call 917-519-8417

new york city dwi lawyer

↑ Return to Survive A DWI Stop

Breathalyzer Tests

Breathalyzer Tests

BreathalyzerThe New York City Police Department primarily relies on the Intoxilizer 5000 to conduct breathalyzer tests. The test is requested when a police officer claims that he smelled alcohol on a driver’s breath. The machines used in NYC are usually malfunctioning. One specific machine has been taken in and out of service several times. The whole premise behind the breathalyzer is flawed. These machines claim to be able to detect how much alcohol is in a person’s blood by examining their breath. The only way to ascertain how much alcohol is in someone’s blood, is to actually take blood.

So why do the police use these machines? Because it’s easy and cheap! The machine prints out a neat number for the courts to prosecute people on. These machines drive New York City DWI lawyers crazy. I have seen countless cases where the driver is dead sober and the machine says that he is drunk. Additionally, the Blood Alcohol Level of .08 is completely arbitrary. Its just a number politicians could agree on when they drafted legislation.

Click here to learn more about the Intoxilizer 5000.

A few years ago the BAC was .10 but then groups like Mothers Against Drunk Driving lobbied and had it reduced to .08. Being judged to be intoxicated depends on politics, and not how much you have actually had to drink.

Under New York State DWI/DUI Laws a driver has the right to refuse a breathalyzer test. Most NYC DWI lawyers would tell a client not to blow in the breathalyzer machines. If you do not, pursuant to VTL 1194, you have the right to have a hearing at the DMV within 10 days of the refusal. These “refusal hearings” are conducted in lower Manhattan at a DMV officer in front of a DMV judge. One important thing to remember is that the refusal hearing and the court case are totally separate entities. One has almost nothing to do with the other. The first date of the hearing the police officer will probably not appear. The DMV then must adjourn it for him to appear but the driver will receive his driving privileges back.

At the second hearing, if the police officer does not appear, the hearing will go on and a decision will be rendered based on the paperwork presented by the arresting officer. There are several motions that can be made to dismiss the case that require the experience of a NYC DWI lawyer to make the appropriate motions. NYC DWI Lawyer Michael S. DIscioarro attends about 40 of these appearances every year and is surprised that people show up without an attorney. If you loose the DMV hearing your driving privileges are suspended for one full year, and there is almost no recourse. Losing your drivers license may affect your ability to work, or get to work, and may impact your employment.

Can I Refuse The Breathalyzer?

Under New York Law a driver has the right to refuse a physical coordination test and a Breathalyzer test. However, if a driver does that, he will face a once year suspension of his driver’s license and the refusal may be used against him at trial. With this in mind, over 90% of people charged with DWI will follow the police officer’s request and take the breathalyzer test.

These machines are notoriously inaccurate, but they offer the prosecution a powerful tool when it comes time for trial. The refusal is usually captured on videotape that is running once the driver has been brought into the Intoxicated Driver Testing Unit room. This room is equipped with a camera and two Breathalyzer machines.

Usually an officer from the NYPD Highway Unit will conduct the Breathalyzer test and conduct the coordination tests. These tests include standing on one leg, touching your nose and walking a straight line. The instructions are usually given very fast in an effort to confuse the driver.

If you have been charged with a DWI in New York, contact The Law Offices of Michael S. Discioarro, LLC at 917-519-8417 and let us fight for your rights.