When a Rochester driver is being tried on a charge involving the breath test, such as Driving with a Blood Alcohol Content of .08% or Greater or Aggravated Driving While Intoxicated, per se, the prosecution is required to establish that the breath test machine was working properly when the test was administered.

This requires that they present evidence in a form that is legally admissible in court establishing that the breath test machine underwent a recent maintenance check and was either found to be working properly or, if not working properly, repaired.

Because the testing and repair of breath test machines throughout New York State is conducted by one state agency operating out of a central location, requiring the individual who last performed maintenance and testing on the machines to testify at every DWI trial throughout New York State involving a breath test would be extremely expensive and inefficient.

As a result, the prosecution in almost all breath test cases will instead seek to have a copy of the report of the testing and maintenance admitted as evidence at trial.

The courts have ruled that such a report may be admitted for the purpose of establishing that the breath test machine was working properly, so long as it meets certain criteria.

Generally, the report must be accompanied by a certification stating that it is a true and accurate copy of the original report and was generated in the normal course of the business of the agency.

An experienced DWI attorney will carefully scrutinize the report and accompanying certification to determine whether they comply with the requirements to be admitted as evidence in court.

If the report cannot be admitted, the result of the breath test also may not be admissible at trial.

Anyone who took the breath test should seek an experienced DWI lawyer who understands the law surrounding the breath test.

Call us at 585-484-7432 for a legal consultation.