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DWI Defendant Claims Breathlyzer Machine was Inaccurate


Driving under the influence of alcohol or drugs has been a hot political topic for the past decade. The results of the political impact is that more laws and tougher laws have been enacted that are aimed at reducing DUI incidents. The problem is that whenever more laws are created, more people fall into the category. Twenty years ago, DUI cases were straightforward. The tests that the officers used in the field tested long term memory and coordination that were clearly indicative of impairment. Since, lower acceptable levels of blood alcohol have been established; the old tests were unable to detect this lower level. The reason is that the lower level is a point below what used to be considered impaired. Because of this, new field sobriety tests had to be created. The current tests are designed for failure, not for actually testing impairment.

The political atmosphere has created other problems as well. Government grants for DUI police units mean that police departments get money for catching more DUI drivers. A New York DWI Lawyer said it is no longer in the officer’s best interest to determine if the person is impaired or not. It is in the officer’s best interest to make an arrest, no matter how low the person’s blood alcohol content is.

Some states, like Florida, have made the penalty for first time DUI so harsh that refusing the test is a better option. In order for a person to fail a breath test, there are several things that can happen: The person can be actually over the legal limit of .08 for people over the age of 21 years; the machine can be faulty, as 80% of the Florida machines were determined to be in 2007; the officer can determine that the person is intentionally attempting to defeat the machine by not blowing fully into it; the person can put something, like gum, into their mouths after being instructed not to; or the person can pretend to blow into the machine while not expelling any air. It is also possible that the person speaks a language other than English and does not understand the instructions that are given to him.

That was the case on March 27, 2004 at around six in the morning when two police officers noticed that a vehicle had one tail light that was not functioning and windows that were tinted too dark. A New York DWI Lawyer said the officers stopped the vehicle and asked the driver to step out of the car. They noticed an odor of an alcoholic beverage about the person and placed him under arrest for DUI. They did not appear to have conducted any field sobriety tests of the subject, mainly because he spoke Spanish and there was a communication barrier.

The man was transported to the precinct where he was shown a video tape in Spanish which detailed his rights and asked if he would submit to an alcohol test of his breath. He indicated that he would. At that point, the machine was turned off and the officer demonstrated how to blow in to the machine. The officer only gave a short puff of air into the machine to demonstrate. The intoxilizer 5000 machine requires that the person blow long and hard for about four seconds. The purpose is to obtain a sample of deep lung air and not just mouth alcohol.

The defendant approached the machine as instructed and gave a short puff of air into the machine. The officer said, “Mas.” Then the officer stated in English, “More blowing.” The defendant again went to the machine and blew into it. The entire interaction was recorded on video tape. In spite of the fact that there were four officers present, none spoke Spanish. The recording clearly shows that the defendant was confused and did not know what to do. He returned numerous times to the machine and blew in to it. Each time that he blew the officer yelled the same two phrases at him. At times, the frustration level on both sides was clearly obvious. The recording demonstrated that the defendant was actually blowing into the machine as his breath was audible on the recording. He was visibly confused by the fact that the machine was not registering his attempts to blow in to it. The more times that he tried and failed, the more upset he became. He demonstrated that he was becoming emotionally distraught by the situation. He began to plead with the other officers to help him. He indicated that he was ill by fluttering his hand over his chest. The officers in the background remained silent. Only the one officer in the recording spoke to him and he just kept repeating the same thing. The man was getting upset since the officer in his frustration was yelling the same phrases at him that were not describing what he was expected to do. The second part of the Spanish video was shown to the defendant. This part tells the suspect that if they refuse to take the test that their license will be suspended or revoked. The defendant again returned to the machine as instructed. He again blew in to the machine. Again, the sample was not long enough for the machine to register it. The officer was screaming, “Mas” at him. The man was distraught. Finally, the officer declared that the man was deliberately refusing to take the test and wrote the incident up as a refusal. The man was transported to the jail.

In New York, it is incumbent upon the state to prove that the warnings about license suspension and revocation are clearly given and that the person deliberately refuses the test in order for the refusal to stand on its own in court. A Nassau County DWI Lawyer said when this case got to court, it was determined that the police officers had in fact given the warnings clearly and in a legible fashion. They also determined that the defendant had understood the warnings clearly. However, they determined that the state had not been able to prove that the man had deliberately refused to take the test. The video recording of the test clearly demonstrated that the man was attempting to take the test. He just did not know how he was supposed to take the test. Because of this, the court determined that the refusal could not be used in court against the defendant.

The prosecutor appealed this verdict and stated that the state had met their burden to prove that the man was deliberately refusing to take the test. The court disagreed. The court determined that on the contrary, it was obvious that this defendant was genuinely attempting to take the test. The fact that he was not doing it correctly was the fault of the officer who failed to demonstrate the length of time that the man was expected to blow in to the machine. The court upheld the verdict that the refusal could not be allowed in court.

At Stephen Bilkis & Associates NY Criminal Lawyers, we have convenient offices throughout New York and the Metropolitan area. Do not lose your driving privileges. Our New York DUI Lawyers can provide you with advice to guide you through difficult situations. Without an NY DUI Lawyer, you could lose your driver’s license or your freedom.

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