When A Rochester area driver is stopped for drinking and driving and agrees to submit to a breath test, he or she will only be required to provide one breath sample.
While several states require defendants to provide two separate breath samples for testing, New York State law only requires one breath test.
There are several arguments that support conducting more than one breath test following an arrest.
Perhaps the most important of these is that if the results of the two tests are close, there is additional evidence that the breath test machine was working properly and the test was properly conducted when the defendant was tested.
On the other hand, if the results vary by a wide margin, it would establish there was some problem with the results.
This would reduce the possibility of someone being convicted based on erroneous evidence.
Many states that use two separate breath tests require that the results be within .02% to be admissible as evidence in court.
In addition to helping verify the results of the breath test, DWI lawyers have argued for years that a second breath test would provide additional evidence of the driver’s blood alcohol content at the time of operating the vehicle.
While New York law bars having a blood alcohol level of .08% or greater at the time the defendant was driving, it is obviously not possible to measure the driver’s blood alcohol content when actually driving.
As a result, the prosecution must rely on a breath score obtained some period of time after the defendant has ceased driving.
If the defendant was still absorbing alcohol after being stopped, the breath test score may be higher than it would have been when actually driving.
A second breath test taken a short period of time after the first would provide evidence regarding whether the defendant’s blood alcohol level was rising or falling after being stopped.
It is important for anyone arrested for drinking and driving to have a lawyer who understands how the breath test works. Call us a 585-484-7432 for a legal consultation.
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