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 Riebling, Proto & Sachs, 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.

Field Sobriety Tests (FST) are a common method to determine whether there is reasonable cause to believe that a person is Driving While Intoxicated (DWI).  The New York State police, local police and county police use FST as part of any DWI stop and DWI investigation.  In those tests a motorist is asked to step out of their vehicle and engage in a number of physical acts which are designed to test a person’s coordination for the purposes of determining intoxication.  Motorists generally cooperate with these tests and rarely refuse to take these FST.  If the FST are refused your driver’s license will NOT be suspended unlike a chemical test refusal.

In any DWI investigation in New York State, these tests will be offered.  In Bedford Court in Westchester County, White Plains City Court in Westchester County, Yonkers City Court, Southeast (Brewster) Court, or any other court in Westchester, Rockland, Orange, Putnam or Dutchess Counties the Courts will provide a motorist a list of FST at arraignment.  It is usually a form with boxes checked off regarding the test, if the tests were refused and if the motorist passed or failed the FST.  The State Police have a standardized form but local police may used their own form.

What are These Tests?

The FST commonly use include the following:

1. Horizontal Gaze Nystagmus Test (HGN) –  In this test the office asks you to follow his pen with your eyes.  The test looks for an involuntary jerking motion of your eyes.  Although this test can be used by the officer to determine intoxication it is rarely admitted into evidence at trial.
2. The Walk and Turn Test — In this test you are asked to walk heal to toe, turn and walk heal to toe again.  Usually it is anywhere from 1-10 steps.  Rarely is this test given on a flat surface on a painted line.  Usually its on the side of the road with cars driving by at 60-70 miles per hour, at night with the police car lights flashing in the background. 
3. One Leg Stand — The officer will ask you to stand on one leg for 30 seconds.  The officer is looking for swaying, moving arms up more than six inches for balance (most individuals keep their arms to their side making the test very hard), hopping or putting your foot down.
4. Finger to Nose Test — In this test a motorist is asked to stand with their feet together, close their eyes, extend their arms out and touch the tip of their finger to the tip of their nose.
5. ABC Test — In the Alphabet test, the officer will ask the motorist to recite the alphabet test usually from the middle to the end.

The Defense to the DWI, Field Sobriety Tests

There may be additional tests but the above are the major tests a police officer will use to determine intoxication.  The tests are all defensible.  The best criminal defense to a DWI charge is an attack of these tests including:

1. Lack of instructions regarding how to perform the test.
2. Lack of officer demonstration regarding how to perform the test.
3. Conditions during the test, such as performed on a busy highway.
4. The subjective nature of the test.
5. Officer’s presumption of guilt that they are just “going through the motions” before an arrest.
6. The officer rushing the tests.
7. The motorist actually passed the test and the officer marked it as failed.

There are of course more ways to defend the FST test but this is just a general line of attack for the best criminal defense, every person is in a different position.  For example, in the defense of a DWI charge on 684 in North Castle (Armonk), New York the officer allowed a women to take her 2 inch high heals off but was told to perform the one leg stand test and walk and turn test on the side of the road with rocks, dirt and even glass under her feet clearly putting her at a disadvantage.  The defense of a DWI charge is always tailored to your specific facts and circumstances.

Criminal Defense of the Field Sobriety Tests

FST in any criminal defense must be attacked since the District Attorney will use that test as strong evidence of guilt.  Since all the police have to do is check off a box there is the temptation to rush through the tests and check off as many boxes as possible.  That is the first and best criminal defense to DWI, FST.  Our DWI criminal defense lawyers cross examine the administration of the tests and the motorist’s performance but also the validity of the tests as an indicator of intoxication and the subjectivity of the judgment of the police officer.

FST and a Chemical Test Refusal

As a criminal defense attorney and a DWI criminal defense attorney I always prepare the best defense for my clients.  I review the evidence from the District Attorney and determine if they have a strong case or a weak case. 

FST will be used as evidence of guilt but your driver’s license will NOT be suspended if you refuse to take any of those tests.  However, if you refuse to submit to a chemical test your driver’s license will be suspended and you may also face civil penalties.  A chemical test will also be used a evidence of guilt. 

If its one’s goal to minimize the amount of evidence against them at trial and they refuse a chemical test to accomplish this the FST should be refused as well. 

The DWI Arrest

If the police feel you are intoxicated or impaired (DWI) (DWAI) they will make an arrest.  The best course of action after any arrest is to call a DWI criminal defense attorney.  Not only can a lawyer explain your rights to you and the best defense for your case but you should immediately feel better that your lawyer is attacking the case and will do whatever necessary to protect you.

If you or a family member is charged with a DWI related offense call my office for a free consultation.  We regularly appear in the Courts of Westchester, Putnam, Dutchess, Orange, Rockland and the Bronx.