DWI charge: Sometimes BAC test science deserves a challenge

During a roadside stop for suspected driving while intoxicated, New York police often rely on the results of portable breath testing equipment. There’s a good reason why. They are simple and cost effective to use. And over time, courts have come to accept the evidence as reliable except where challenges have been made successfully.

Blood tests based on drawn blood are generally viewed as being more reliable, but as the U.S. Supreme Court ruled last year, police have to obtain a warrant in order to conduct that kind of test.

Even if a warrant is duly obtained and executed, that doesn’t necessarily mean it’s the end of the story. The blood still has to be tested at a lab and they don’t all necessarily use the same processes. Depending on what methods are used and how the data is handled, results can vary widely.

The reality is that you will see your driving privileges suspended if you are simply charged with DWI in New York and police can present a certified breath test at your arraignment. That being so, and considering that greater penalties could result if a conviction is obtained, it makes sense for the defense to raise challenges whenever possible.

A situation out of one county in Pennsylvania reveals why such challenges can be important. According to a report in the Claims Journal, county prosecutors had relied on a hospital’s lab to do testing of blood taken from suspected drunk drivers. It turns out that the lab checked blood serum, not the whole blood samples.

The report says the problem is that with serum testing, blood alcohol content can be overestimated by as much as 15 percent. Serum test results need to be recalculated to factor in the process used and the local prosecutor says that didn’t happen for some period of time. As a result, a lot of cases were thrown into question.

Such glitches in the system may be understandable, but they are not excusable when they jeopardize an individual’s rights.

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Glenn R. Bruno, Esq.

New York Defense Lawyer
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