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Can breath test results be challenged in New York courts?

Holiday parties are in full swing this time of year -- and that means police in New City will be on high alert for those they believe are driving under the influence. When police pull someone over on suspicion of driving while intoxicated, many times, they will administer a breath test using a Breathalyzer. But, are these tests always accurate?

Perhaps not. A Breathalyzer is an instrument that a person blows into, allowing the instrument to analyze the person's blood alcohol content level (BAC.) A reading at 0.08 or above means the driver's BAC is above the legal limit, and they can be charged with drunk driving. However, it is possible to challenge whether the instrument was working properly when the reading was administered.

Breathalyzers must be calibrated regularly to ensure the results they generate are accurate. If a Breathalyzer is not properly maintained, the results it generates will be inaccurate, and should not be used as a baseline for presuming a person is driving while intoxicated per se.

State laws dictate how often and how calibration of a Breathalyzer should occur. In general though, the instrument must appear on a conforming list of acceptable instruments, it must be checked regularly to ensure it is accurate and the officer utilizing the Breathalyzer must be certified to do so. Also, the person taking the breath test must not have smoked, eaten, belched or vomited immediately before the test is performed.

If a person can prove that the breath test was performed with a faulty instrument, the reading from that instrument may not be used against the person. Criminal defense attorneys can challenge breath test results, whether the instrument was improperly maintained, calibrated or the test itself was improperly performed.

If any deficiency can be shown, the prosecution has the burden of proving the driver was intoxicated with other types of evidence, which may not be available or reliable, particularly if the driver was not drunk when pulled over. Therefore, people should not be afraid to challenge breath test results. A criminal defense attorney can help a person craft a strategy for addressing drunk driving charges that could result in a reduction of charges or an outright acquittal.

Source: FindLaw.com, "Breathalyzer Calibration," accessed on Dec. 17, 2016

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