Why Your New York State Breath Test May Be Falsely High?
Living in the land of “Ignorance is Bliss” and “What you don’t know won’t hurt ya” can cause lots of problems for the guy on the street, and moreso for criminal defense lawyers. Understanding the science behind DUI machines can open your eyes to the truth. It’s crucial for the police to check your mouth and to watch you for 20 minutes before giving you a breath test. Contaminated samples (with mouth alcohol) can give falsely high results.
In upstate New York drunk driving tests the police take only one breath sample. The city and town police use the Datamaster breath machine, and the breath is checked only one time for alcohol. State police use the Draeger Alco Test which checks the same sample twice.
Scientists in labs normally do “duplicate” testing. They test two separate samples. Many states do duplicate sampling. I am a fan of the CSI TV show, on the show it is the forensic norm to test two separate, and distinct samples for all criminal evidence. This lab procedure assures greater accuracy of the results because we have confirmation.
Upstate NY Police Procedure: One Sample with One Test = NO Confirmation of Results
Imagine for a moment going to the doctor, and getting a high blood pressure reading on his machine. Should the doctor make a diagnosis based solely upon the one test, and prescribe medication? Doctors have to have three separate office visits with a showing of high blood pressure before making a diagnosis of high blood pressure let alone prescribe drugs for this condition. How about a more serious scenario, you have a blood test for HIV, and you are told it is positive. Imagine if the doctor states that you cannot have another test. Sorry, no second opinions for you, you just have to live with those results. Having to live with the results of one single test means coming to a conclusion with NO confirmation. This is in my opinion bad science, bad medicine, and bad testing.
Well having a breath machine spit out a number without confirmation of the result is scary stuff. The machine is an unsworn trial witness.
An inaccurate test result is bad enough but when you only get one opinion (from one test sample), and the police make that one test critical to your guilt or innocence of DWI (based on that one test) then fairness has been eliminated from the process. In a State without an expungement statute that truly is a life sentence.
Take away: To insure a clean and accurate breath sample your defense attorney must check that the police did a mouth check, and followed the mandated 20 minute observation period before your test.