Nearly all Rochester area drinking and driving arrests involve the driver being asked to submit to a breath test to determine his or her blood alcohol content.

The results of the breath test are necessary to support charges such as Driving with a Blood Alcohol Content of .08% or Greater or Aggravated Driving While Intoxicated, per se (which requires a finding that the driver had a blood alcohol content of .18% or greater).

While a breath or blood test score is not necessary to support other charges such as Driving While Intoxicated or Driving While Ability Impaired by Alcohol, under New York law the results of the breath test may still be considered as evidence when determining whether a defendant has committed any alcohol-related driving offense.

When considering the manner in which a breath test score should be evaluated as evidence, New York State law sets forth specific rules regarding how much weight should be given to the breath test score.

For example, evidence that there was more than .05% but less than .07% of alcohol in a person’s blood is considered relevant evidence in determining whether the ability of such person to operate a motor vehicle was impaired by the consumption of alcohol.

Relevant evidence is generally defined as evidence that tends to prove the fact alleged.

Under such circumstances, while the relatively low breath test score supports that the defendant is impaired, evidence to the contrary – such as lack of erratic driving and no indication of loss of coordination by the driver – may overcome the results of the breath test.

Following any arrest for drinking and driving, it is important to have an experienced DWI lawyer who understands the evidence against you.

Call us at 585-484-7432 for legal help.