A Rochester driver who is suspected of driving while intoxicated will almost always be asked to take a breath test.

The arresting police officer, however, will not give this test immediately.

Instead, the driver will be required to wait a certain amount of time – 20 minutes for most Rochester area police agencies – prior to blowing into the breath test machine.

The purpose of this delay is to help avoid contamination of the breath test result.

New York’s rules surrounding the breath test require that a driver taking the test be continuously observed for at least fifteen minutes prior to the collection of the breath sample, during which period he or she must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, smoked or been allowed to place anything in his or her mouth.

If the driver does regurgitate, vomit, eat, smoke or place anything in his or her mouth, an additional fifteen minute waiting period is required.

An experienced DWI lawyer may explore the circumstances surrounding this required observation period to determine if the law was actually complied with.

Many people arrested for DWI do not have the purpose of this delay in taking the breath test explained to them and are not aware that if they burp, alcohol coming up from their stomach may have an impact on the breath test result.

Also, while the law requires “continuous observation” by law enforcement, in some cases the police do not actually watch the driver to make sure he or she does not regurgitate or place anything in his or her mouth.

For example, in some cases the police have counted the ride to the police station to take the test as part of the observation period, even though the officer could not have observed the driver in the back seat continuously and the driver was not aware that burping or placing something in his or her mouth may alter the breath test result.

If you have been arrested for DWI and have any legal questions about the breath test, call us at 585-484-7432.