The breath test score is often the most damaging piece of evidence in a Rochester DWI case.
To prove a driver is guilty of Driving with a Blood Alcohol Content of .08% or Greater or Aggravated Driving While Intoxicated per se (which requires a score of .18% or greater), the prosecution must be able to establish that the driver’s blood alcohol content was above the legal limit when driving.
While it is impossible to administer such a test to a driver immediately after making a stop, law enforcement will usually want to administer the test as soon as possible to obtain a result that is close to the actual blood alcohol content when the defendant was driving.
There is no rule regarding how long after a stop the breath test may be administered.
New York courts have, however, regularly rejected the results of tests given more than two hours after the driver was stopped, and law enforcement frequently will inform a driver who attempts to delay more than two hours in taking the test that any additional delay will be considered a refusal to submit to it.
While a test administered more than two hours after the stop may be admitted as evidence in some cases, the prosecution often will not even seek to use such results as the driver’s blood alcohol content may have dropped significantly over time, and the low breath test result may actually undermine their efforts to prosecute the driver.
If you have been arrested for drinking and driving and have any questions regarding the breath test, we are experienced DWI lawyers who can help you.
Please feel free to call us at 585-484-7432 for a legal consultation regarding your case.