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Breathalyzer Test / Intoxilyzer Test

When a person is suspected of driving while intoxicated (DWI) or driving while ability impaired (DWAI) by alcohol, police officers are authorized to request a chemical test of the alleged offender’s breath, urine, saliva, or blood. In most cases, authorities will utilize some kind of test of the person’s breath because breath analysis equipment (frequently called a breathalyzer) is the easiest to use and provides instant results.  In New York City, the breathalyzer is frequently used at the scene of the traffic stop in order to get a blood alcohol reading which is not admissible in court, but which would provide the arresting officer with probable cause to arrest. The results of the test given at the precinct with the Intoxilyzer are generally admissible in court.

If a person submits a sample that registers a blood alcohol concentration (BAC) of 0.08 or greater, that individual can be arrested for a per se (Latin for “by itself” or “in itself”) violation of the state’s drunk driving laws. While a failed breath test leaves many alleged offenders feeling as though they are destined to plead guilty, the truth is that state law places strict requirements on how these types of tests are supposed to be administered and any deviation from the norms can lead to test results being inadmissible in court.

Attorney for DWI Breathalyzer / Intoxilyzer Test Arrests in Queens, NY

If you were arrested in the greater New York City area for any kind of alleged drunk driving offense after submitting to a breath test, it will be in your best interest to immediately seek legal representation. Law Office of Rochelle S. Berliner can fight to possibly get your criminal charges reduced or dismissed.

Rochelle S. Berliner is an experienced criminal defense lawyer in Queens who defends clients all over New York City accused of DWI offenses, including surrounding communities in Queens County, Bronx County, Kings County, and New York County. Call Law Office of Rochelle S. Berliner today to have our attorney provide a complete evaluation of your case during a free initial consultation.


New York Breathalyzer / Intoxilyzer Test Information Center


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How Breathalyzer / Intoxilyzer Tests Are Handled in New York City

New York Vehicle & Traffic Law § 1194.2(a) stipulates that any person who operates a motor vehicle in the state of New York is deemed to have given consent to a chemical test for the purpose of determining the alcoholic content provided that such test is administered by or at the direction of a police officer having reasonable grounds to believe such person operated in violation of the state’s DWI law. When an alleged offender consents to such testing, police officers will usually administer two types of breath tests.

The first breath sample from the alleged offender is usually taken in a test administered roadside at the scene of the arrest using a portable breathalyzer. The type of portable breath test equipment utilized by the police officer depends on the jurisdiction in which the alleged offense occurs, but some common brands of portable breathalyzers include:

  • Alco-Sensor;
  • Dräger Alcotest; or
  • Intoxilyzer.

Roadside breath tests are often referred to as “field tests.” Such tests are used only to provide preliminary proof of the presence of alcohol on an alleged offender’s breath to support a police officer having probable cause to arrest the individual for DWI. 
The BAC results of portable breath tests are not admissible at trial as the primary form of evidence against alleged offenders accused of DWI, as a properly licensed individual must administer another breath test on a stationary breathalyzer (usually at the local police station) that can be calibrated and videotaped. The types of equipment that may be used for these tests at police stations include any of the three brands listed above or a DataMaster or Intox model.

If an alleged offender refuses to submit to a chemical test in New York, that individual can have his or her driver’s license automatically suspended and be ordered to pay a fine and annual driver responsibility assessment. Whether an alleged offender consents or refuses to a breath test, evidence of refusal or any BAC measurement may be inadmissible if the arresting officer failed to provide “sufficient warning, in clear or unequivocal language” of the consequences of refusal.  In case of a refusal, a separate administrative hearing is held at the Department of Motor Vehicles.  If the administrative judge determines that the officer properly advised the individual about the consequences of a refusal, the administrative judge will order the person’s license to be revoked for one year.  This is separate and apart from any outcome of the criminal case.


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Common Issues with Breathalyzer / Intoxilyzer Tests in Queens

When an alleged offender is accused of DWI in New York, the instructions to jurors will usually order them to consider the following when determining the accuracy of the results of any BAC test:

  • The qualifications and reliability of the person who gave the test;
  • The lapse of time between the operation of the motor vehicle and the giving of the test;
  • Whether the device used was in good working order at the time the test was administered; and
  • Whether the test was properly given.

Intoxilyzers can be complicated types of machinery, and tests are supposed to be handled by certified Breath Analysis Operators. Simple human error can often be the common cause of inaccurate test results that lead to the BAC results of certain breath tests to be inadmissible in court.

Some of the other kinds of mistakes in the administration of a breath test that a criminal defense lawyer may be able to identify and use to get DWI charges reduced or dismissed include:

  • Improper use of equipment;
  • Improperly calibrated intoxilyzer;
  • Failure to properly maintain intoxilyzer;
  • Food, mouth alcohol, or other substance in alleged offender’s mouth produced false positive;
  • Electrical interference; or
  • Abnormal body temperature.

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New York Breathalyzer Test / Intoxilyzer Test Resources

Criminal Jury Instructions | Driving While Intoxicated Per Se — View the full text of the standard instructions are usually given for DWI cases involving alleged violations of New York Vehicle & Traffic Law § 1192(2). The instructions not only outline the factors to be considered in the administration of tests to determine an alleged offender’s BAC, but also other types of evidence that jurors can consider. You can find additional instructions for related DWI offenses under the Vehicle & Traffic Law section of the New York State Unified Court System’s Criminal Jury Instructions & Model Colloquies page.

People v. Reed, 5 Misc 3d 1032A, 799 N.Y.S.2d 163 [Bx. Co., Sup. Ct. 2004] — David Reed was charged with DWI on July 14, 2003, after he allegedly struck a pedestrian while driving. Reed registered a 0.166 BAC on a field test performed with an Intoxilyser S-D2, but refused to submit to a breathalyzer test until he spoke to a lawyer. Reed moved to suppress the results of a field test on the ground that it was not administered within the two-hour period proscribed by New York Vehicle & Traffic Law § 1194(2)(a)(2), but the State asserted that the field test results were admissible at trial as evidence in chief of intoxication. On December 15, 2004, the First Judicial Department of the Supreme Court of the State of New York concluded that “field test results cannot be introduced as evidence in chief of defendant's intoxication.”


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Law Office of Rochelle S. Berliner | Queens Breathalyzer Test / Intoxilyzer Test Defense Lawyer

Were you arrested for an alleged DWI offense in New York City after submitting to a breath test? Do not assume that one failed test is the same as a conviction. Contact Law Office of Rochelle S. Berliner as soon as possible for help protecting your rights and achieving the most favorable outcome to your case.

Queens criminal defense attorney Rochelle S. Berliner represents individuals accused of drunk driving in Manhattan, Brooklyn, and the Bronx as well as several other nearby areas of New York City. She can review your case and answer all of your legal questions when you call 718-261-5600 or submit an online contact form today to take advantage of a free, confidential consultation


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Free Consultation

Submit your information using this form to schedule a free consultation with attorney Rochelle Berliner.

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