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.<\/p>\n
\u00a0In the context of a DWI case,\u00a0 when you see a number associated with\u00a0Blood Alcohol Content (BAC) what you are really seeing are the results from a\u00a0headspace 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\u00a0 59.5, the operator of the breathalyzer is\u00a0required<\/u>\u00a0to 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.<\/p>\n
In fact, the recent decision out of the Second Department in\u00a0Singas v. Engel\u00a02017 WL 5473932\u00a0made this very finding\u00a0and held that\u00a0it was proper for the Supreme Court to require the district attorney’s office\u00a0to 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.<\/p>\n
if you are currently facing a DWI prosecution and would like to discuss your case, please\u00a0contact us<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":" 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 … <\/p>\n