When a trial in conducted in the Rochester area where the defendant has been charged with a drinking and driving offense based on his or her blood alcohol content when driving – such as Driving With A Blood Alcohol Content Of .08% Or Greater or Aggravated Driving While Intoxicated, per se – the results of the defendant’s breath test will be a key piece of evidence.

To have the results of the breath test admitted as evidence at trial, the prosecution must present proof that the breath test machine was working properly and any chemicals it used were the proper kind and mixed in the proper proportions.

Part of laying this foundation for the admission of the breath test score involves establishing that the breath test machine was recently inspected, calibrated and – if necessary – repaired, and that the simulator solution used during the defendant’s test was previously tested by New York State and found to contain the amount of alcohol claimed by the manufacturer.

Because it would be extremely burdensome on the courts to require the New York State employees who inspect the breath test machine and who test similator solutions to appear as witnesses at every DWI trial throughout New York State, the prosecution will almost always seek to have documentation of the testing done by New York State admitted as a “business record.”

In New York State, the business record exception to the hearsay rule allows the admission as evidence of records generated in the normal course of a business without the person who generated the document having to appear and testify.

If properly prepared and certified as business records, these documents will almost always be admitted as evidence.

As a result, an experienced DWI lawyer will request these records prior to trial and carefully examine them to make sure they comply with the laws surrounding the use of business records as evidence at trial.

If you have been arrested for drinking and driving, we can help you.

Please call us a 585-484-7432 for a legal consultation.