New York State law requires that any Rochester driver asked to take a breath test to determine his or her blood alcohol content be observed for at least 15 minutes prior to the collection of the breath sample.

During this period, he or she must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, smoked, or placed anything in his or her mouth.

This requirement is necessary because performing any of these actions may interfere with the ability of the breath test machine to obtain a proper result.

When a driver waiting to take the breath test does, for example, regurgitate during the 15 minute waiting period, the breath test cannot proceed.

This does not, however, mean that the driver is completely barred from taking the breath test.

Instead, the law provides that should the driver regurgitate, vomit, smoke or place anything in his or her mouth, it is necessary to restart the 15 minute waiting period, after which the driver may still take the breath test.

While the law provides that a driver may still take the breath test despite the additional delay, anyone considering deliberately burping or otherwise violating the observation period for the purpose of delaying or avoiding the breath test should be aware that if a law enforcement officer suspects that the driver’s actions are deliberate, it is likely that the driver will be considered to have refused to submit to the breath test.

Refusal to submit to the breath test carries additional fines and driver’s license penalties aside from those arising from any drinking and driving charges.

We are experienced DWI lawyers who can help you following an arrest for drinking and driving. Please call us at 585-484-7432 to discuss your case.