In almost every DWI case in New York State there are two tests of a motorists
Blood Alcohol Content (BAC) but they are very different tests and treated
under the DWI law in a different manner. Many DWI arrests in Westchester,
Orange, Rockland, Putnam, Dutchess counties involve these two tests and
create confusion for those arrested for DWI offenses.
This DWI blog will discuss the "breath screening test". By contrast a
DWI Chemical Test is a test usually done via breathalyzer, urine or blood test. The breath
screening test is the test usually preformed at the arrest scene utilizing
a hand held instrument about the size of a cell phone. The motorist blows
into this handheld device and a BAC number registers. Typically this number
is greater than the later DWI chemical test.
A breath test pursuant to VTL 1194(1)(b) refers to a preliminary test of
a DWI suspects breath for the presence of alcohol. The device used is
called an Alco-Sensor or PBT. A refusal to submit to this breath screening
test is a traffic violation.
DWI Laws make it clear that a motorist is under no obligation to submit to a breath
screening test unless the motorist has been involved in and accident or
committed a VTL violation. This test is a search within the meaning of
the 4th amendment and can only be done with probable cause.
Importantly the Alco-Sensor test is not admissible at trial but the Courts
have held that testimony regarding the defendant's attempts to avoid
giving an adequate breath sample for Alco-Sensor testing can be admitted
into evidence as consciousness of guilt.
Commonly the District Attorney will try to have the test admitted at trial
but the top
criminal defense lawyers will object as the courts have held this test should not be admitted.
In Westchester County DWI arrests the prosecutor usually asks the judge
to allow testimony that the motorist failed the test but agree not to
disclose the actual results. The best DWI criminal defense is to object
to the prosecution strategy as it can prejudice the jury.
In any DWI defense the goal is to limit the amount of evidence the prosecution
has against the accused. If enough evidence can be eliminated the productions
case can become extremely weak. This is one type of evidence that can
be excluded from a jurys consideration during a DWI trial.