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| image courtesy imdb |
The Problems with New
York DWI Alchemy: Turning Breath into Blood
You know, New York State is a blood state. That does not
mean that NYS is out for blood although with our taxes that is not an unfair
statement... Whether the police decide to request your blood or just your breath,
in the end it all comes down to a BAC. What I mean is that when it comes to a
DWI “per se” charge, driving while intoxicated New York DWI laws that focus
upon a measured quantity of alcohol are all based upon Blood Alcohol
Concentration. This is true even when a breath test is used to measure your
BAC.
Our Vehicle and Traffic Law statute section 1192 gives two
BAC based criminal charges. A DWI based upon a .08 BAC or higher or the more serious
Aggravated DWI where your blood alcohol concentration level was .18 BAC or
higher. These are blood numbers not
breath numbers. If they were breath they would be "BrAC" not BAC.
Different DWI Breath Testing Machines but One Methodology
The problem is that depending upon where you are arrested in
New York State you might have been tested with one of three types of
breathalyzers. In the city, the New York City Police Department has the
Intoxilyzer 8000, while the upstate police departments within the cities, towns, and
villages have the Datamaster DMT, and lastly our state troopers (around the
state highways) all use the newest breath machine, the Draeger Alcotest 9510.
So what do all these breathalyzers all have in common?
They all take a breath sample to measure your body’s alcohol
level --not a blood sample. The reading off the unit is in BAC not a BrAC. It
doesn’t give your breath alcohol concentration measurement, it gives your BLOOD
alcohol measurement.
Which means that for the most part the majority of chemical
testing for DWI in New York State is INDIRECT alcohol testing of your blood.
The machines take in a breath alcohol sample, and then spits out a blood
alcohol measurement.
Changing a Breath Alcohol Measurement to a Blood Alcohol
Measurement
The breathalyzers all have software that runs a program to
do this calculation of changing breath alcohol into a blood alcohol
concentration. The breath testing software, and it’s algorithms are all secret.
To do this calculation the machine must assume a great many things about you:
like what your ratio of breath to blood is, what your body temperature is, what
your elimination rate for alcohol is, etc, etc
The Questions that Arise from Indirect Measurements of Blood
So much doubt resides between what you give the machine as
your breath alcohol sample, and what the machine actually calculates as a BAC
number. This is where your true guilt or innocence may reside.
Can we trust an indirect number? Can we fully trust the
results of a one-time sample? Can a judge or jury decide your fate beyond a
reasonable doubt without more than that? Can they? The answer is yes, but should they? the answer is a most definite NO.
In any New York breath test DWI, the importance of looking at
everything in the totality of the circumstances is something every defense must
highlight. We cannot allow judges or juries decide the fate of a person based
upon this type of testing alone. The DWI chemical testing of breath, one time,
indirectly calculated to measure blood alcohol concentration, and based upon an
average person is not the making of justice.
Do you have a question about a NY DWI breath test case or Refusal case? Give us a call at 607-229-5184.
Or find us online: www.ithacadwi.com
www.fingerlakesdwi.com
www.facebook.com/ithacadwi
www.twitter.com/ithacadwi
BY NEWMAN & CYR
COPYRIGHT NEWMAN & CYR 2016. Educational Purposes Only.
