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In New York State, driving is a privilege- not a right. As such, motorists must abide by the rules of the road. New York State has an “implied consent” law which states that upon a legal arrest for suspicion of driving while intoxicated then you give “implied consent” to submit to a chemical test of your blood, breath, urine or saliva to determine your blood alcohol content (BAC). If you have .08% or more you can be charged with a crime – Driving While Intoxicated. If you have .05% to .07% you can be charged with a violation – Driving While Ability Impaired. If you refuse, you can be charged with common law driving while intoxicated.

As DWI/DUI criminal defense attorneys the most common question we are asked is whether you should take the breath test should you find yourself in the situation where you consumed alcohol and are pulled over. The answer to that question will be the subject of a future article, but another question we are commonly asked: can the breath test be beaten? The answer, in short, no, with the caveat that it can by not drinking and driving!

How does the breath test work in New York? If you are pulled over for suspicion of driving while intoxicated the police officer may request you take a portable breath test (PBT). This is a handheld device that you blow into which gives an estimate of your BAC. Although results of the PBT are not admissible in court due to its unreliability; the results can be used as probable cause to effectuate an arrest. If you refuse the PBT you can be subject to a violation.

If you are arrested on suspicion of DWI/DUI than you will be handcuffed and transported to the local police prescient for processing. There you may be offered to take another breath test- this one admissible in court. The most common machine in New York to test BAC is the Intoxilyzer 5000.

The Intoxilyzer 5000 is a simple looking machine yet quite sophisticated. In theory, it is designed to have many built-in failsafe to only detect the true BAC. It is designed to distinguish between mouth alcohol and deep lung air, the latter is best used to determine true BAC. Since mouth air can give a false positive, the police officer administrating the test is supposed to observe the person being tested for 20 minutes prior to the test to determine if the subject burps, places anything in their mouth or becomes physically ill/vomits. The machine has a “slop detector” designed to confirm the air being tested is deep lung air and not mouth air. There are many myths on how to beat the test, none are grounded in science. Chewing gum or breath mints prior to the test will do nothing to alter the results. Placing a penny under your tongue may make you choke and will not alter the test results, in fact, if a penny is discovered in your mouth by the police it can be used against you as a consciousness of guilt. The only true way to beat the test is to not drink, refuse or hire an experienced DWI/DUI lawyer to prove the machine malfunctioned or was not used properly. If you refuse you will be subject to serious consequences.

The breath machine looks simple but uses physics and math to determine your BAC. This is a complicated machine and as such if you are charged with DWI/DUI you need experienced DWI/DUI attorneys. As with all machines, the Intoxilyzer 5000 is subject to malfunction. The Long Island DWI/DUI lawyers at Schalk, Ciaccio & Kahn are all former prosecutors and have handled thousands of DWI/DUI cases. We have been trained extensively by members of law enforcement in the Intoxilyzer 5000 and have many accreditations from various DWI/DUI institutions. With our experience, we can determine if there are flaws or malfunctions in your BAC reading. Our DWI/DUI attorneys are available 24 hours a day by phone at 516-858-1266 or you can visit our website for additional information –

Intoxilyzer Intoxilyzer-5000