If an individual is pulled over for a DWI, New York law requires the driver
to submit to a chemical test as a matter of “implied consent.”
This means that by driving in New York, a driver consents to taking this
test if he or she is pulled over by an officer who has probable cause
to believe that the driver is operating a motor vehicle under the influence
of alcohol (DWI) or drugs (DUI). When most people consider the concept
of “consent”, they imagine verbal authorization or a written
signature.
These forms of consent are known as “express” consent. Consent
can also be “implied” by the actor’s conduct itself,
as is the case here. If the results of the initial test reveal Blood Alcohol
Content (BAC) to be above .08% (the legal limit), the officer has the
right to require an additional test. Not only is the DWI a chargeable
offense, but the refusal can also result in a penalty. The first refusal
offense carries a one-year license revocation while the second and third
refusal offenses each carry a separate eighteen-month license revocation.
In a sense, the refusal can be just as costly as the DWI.
The lawyers at
Schalk, Ciaccio & Kahn have devised successful strategies to combat DWI charges in New York.
While Breathalyzer results that are above the legal limit can appear damning,
an experienced criminal defense lawyer can challenge the admissibility
of the results in court under procedural or evidentiary rules. These machines
can malfunction or yield false-positive readings as a result of poor maintenance,
officer misuse, or improper calibration.
The prosecutor has the burden of proof to establish each element of every
crime charged in a criminal proceeding. In order to introduce the results
of a Breathalyzer, the People must "introduce evidence from which
the Trier of fact could reasonably conclude that the testing device was
in proper working order at the time the test was administered to the defendant.
A defendant may attack the accuracy of test results by demonstrating either
that the proper operating procedures were not followed or the machine
was not operating properly.” People v. English, 103 AD2d 979, 480
N.Y.S.2d 56 (3d Dept. 1984).
In plain English, the results of the Breathalyzer are not automatically
admissible in court – the People must first lay a proper foundation
before the results can be introduced at trial. This is good news for defendants
because the foundation can be attacked or discredited.
Since prosecutors rely heavily on the Breathalyzer results when conducting
a trial, defendants are entitled to access to maintenance logs, repair
records, and reports indicating malfunction as part of the discovery process
before trial. To wit, a "defendant may not be denied discovery, which
prevents him from challenging the reliability and accuracy of the machine."
People v. Alvarez, 70 NY2d 375, 380, 515 N.E.2d 898, 521 N.Y.S.2d 212 (1987), citing
People v. English, 103 AD2d 979, 480 N.Y.S.2d 56 (3d Dept.1984).
Criminal cases can often be complex and confusing. Knowing and understanding
your rights is the first step of a long process to ensure that you have
a strong legal defense. You can’t put a price on your freedom. If
you have questions or concerns, call the lawyers at
Schalk, Ciaccio & Kahn for a free consultation.