DWI Breath Test in New York – Are You Over The Legal Limit?

Reader’s Question:

If I took the breath test and the result was only .07% BAC, less than the legal limit of .08%, will I be safe from being charged a DWI case in New York?

Karen

Amherst, NY

Tricky question Karen, thanks for asking. Blood alcohol content, or BAC, is defined as the measurement (or concentration) of alcohol found in a person’s bloodstream. In the state of New York, this is calculated by a percentage by weight of blood.

Although you’re BAC result shows less than New York’s legal limit of 0.08%, you might still be penalized under the law. For first-time offenders there are three levels of DUI offense in the state of New York: DWAI or driving while ability impaired, DWI or driving while intoxicated and Aggravated DWI.

DWAI is commonly referred to individuals with a BAC of between 0.05 and 0.07. This is not completely accurate, as those BAC levels do not necessarily make a person guilty of DWAI, since there are many factors that can contribute to misinterpretation of BAC. However, it is accurate in the sense that a person who shows a 0.05 to 0.07 BAC will usually be charged with a DWAI. A good lawyer will almost always get a good arrangement or even a dismissal with a 0.05, and most of the time on a 0.06. The 0.07 BAC is a tougher one but it is still debatable. The penalty rate for DWAI ranges between $300 to $500, but surcharges and assessments can total to over $1000. With a DWAI case, the driver is almost always suspended for 90 days, and usually required to take the Drinking Driver Program (DDP) to get a conditional license. In addition, to lift the suspension, after 90 days the driver pays a $25 fee.

Darn It I Failed The Alcohol Breath Test in New York

Reader’s Question:

A friend told me that he was tested with a breathalyzer due to being arrested for DWI in New York, but claims that he shouldn’t have failed the test. Is the breath test really accurate? How can you refute a failed breath test?

Stephan

Buffalo, New York

A breathalyzer is a device for estimating a person’s BAC (blood alcohol content) via a sample from the breath. Law enforcement officials most commonly administer breathalyzer tests with a hand-held field testing device, that are now considered to be dependable enough to be taken as evidence in DWI cases. If you take the breath test and the results shows 0.08 BAC, which is above New York’s legal limit, your license will be suspended, pending prosecution.

These tests are often based on assumptions that do not usually apply to everyone, so challenging breath test results is possible. Most breathalyzers assume that the tested individual is an average person and do not take into account sex, weight, height, metabolism and whether that person has just taken a medicine or had eaten. Breath testing machines may also run into other problems when they recognize not only ethyl alcohol, but also any other compound under the methyl group. Thus, a breath test machine may misinterpret other substances or compounds in human breath as alcohol content. In other words, breathalyzer tests are not always accurate.

If you’ve been charged with DWI in New York and failed a breath test but you do not believe in the accuracy of the result, consult an experienced DWI lawyer. Speaking with a qualified DWI attorney is a great way to evaluate your situation and determine if any breathalyzer challenges may apply in your case.