In a typical DWI case, you are often presented with the breath test results by the district attorney’s office and are left with the assumption that the number (whether above or below a .08) is the determinative issue in your case. However, as with most evidence in a criminal case, the science behind the breath results is subject to critique and a good defense attorney knows what to look for.
In the context of a DWI case, when you see a number associated with Blood Alcohol Content (BAC) what you are really seeing are the results from a headspace gas chromatography test. In that test, a sample of your client’s breath is exposed to infrared light and the amount of light absorbed determines the alcohol content found. However, as with any sensitive piece of equipment, calibration is important. Pursuant to 10 NYCRR 59.5, the operator of the breathalyzer is required to use a simulator solution to calibrate the machine immediately prior to each use. The results of the testing on the simulator solution can be quite important as it can tell you if the Breathalyzer was calibrated properly when your client’s breath was examined. As a consequence, a defense attorney should seek these simulator solution test results as part of discovery.
In fact, the recent decision out of the Second Department in Singas v. Engel 2017 WL 5473932 made this very finding and held that it was proper for the Supreme Court to require the district attorney’s office to disclose those simulator solution test results as they fell under the scope of CPL 240.20(1)(c). Examining these calibration test results can mean the difference between your client’s BAC being over or under .08.
if you are currently facing a DWI prosecution and would like to discuss your case, please contact us.