DWI arrest & BAC level
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
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
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
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.