Most Rochester DWI arrests involve the driver being asked to take a breath test.

Aside from the fact that a breath test score of .08% or higher may result in the defendant being charged with Driving With a Blood Alcohol Content of .08% or Greater, and a score of .18% or higher may result in a charge of Aggravated Driving While Intoxicated per se, New York law also has evidentiary rules regarding low breath test scores.

While these rules tend to discourage convicting a driver of Driving While Intoxicated when there is a low breath test score, they do not prohibit it.

Under New York law, evidence that a driver’s blood alcohol content was less than .08% is considered prima facie evidence that the driver was not intoxicated.

Prima facie evidence is evidence that is considered correct unless proven otherwise.

In practical terms, this means that a low breath test score places an additional burden on the prosecution to establish that the breath test score does not properly reflect the level of the defendant’s intoxication.

While it is rare, it is possible for the prosecution to proceed with a charge of Driving While Intoxicated despite a low breath test score because – unlike, for example, Driving With a Blood Alcohol Content of .08% or Greater – a charge of Driving While Intoxicated is not even based on the driver’s blood alcohol score.

Instead, it requires evidence that the driver was incapable of driving as a reasonable and prudent driver.

The evidence typically used to support this charge consists of observation of erratic driving, poor performance on field sobriety tests, and other observations such as lack of coordination, slurred speech, or an odor of alcohol.

Following an arrest for DWI, it is important to understand the evidence against you.

If you need the help of an experienced DWI lawyer, call us at 585-484-7432.