The Breathalyzer: The “Kleenex” of DWI Arrests

It’s become common knowledge that when a driver is pulled over and suspected of driving while intoxicated (also known as DWI) in New York State, that driver will be asked to perform a series of field sobriety tests including walking a straight line, standing on one leg, an eye test known as the “Horizontal Gaze Nystagmus” test, and, of course, taking a “breathalyzer” test to confirm their blood alcohol content (BAC). Foremost, it is important to note that the Breathalyzer instrument itself is an archaic machine that is no longer used by police agencies in Central New York. The machine is known as the Breathalyzer.

Breathalyzer debuted in 1954 by Professor Robert Borkenstein of Indiana University. The Breathalyzer was very portable and has become that household name for any machine used to measure alcohol in one’s system by breath. The name “breathalyzer” itself has stuck to these types of devices much like “Kleenex” is used interchangeable for facial tissues. Today, there are actually two different breath testing devices that are utilized by the police in most DWI cases.

The first breath testing device that a motorist suspected of DWI is likely to encounter is a handheld device administered on the roadside by the officer conducting the DWI investigation. Known as a preliminary breath screening device (preliminary breath test or PBT), the most common type utilized by our local police agencies is the Alco-Sensor. It is important to note that while these devices do generate a numerical BAC, the results of this device are NOT admissible at a DWI trial as evidence against you. Rather, the roadside PBT serves only as another field sobriety test that can serve to confirm or dispute whether a motorist exhibiting signs of intoxication is under the influence of alcohol, as opposed to some other substance or drug.

A driver who refuses to take the PBT test is subject to being issued a traffic ticket in violation of the Field Testing NYS Vehicle & Traffic Law [VTL Sec. 1194-1(b)]. If convicted of this traffic offense, the driver is subject to a maximum fine of $150, a $93 state surcharge, and the imposition of a Driver Responsibility Assessment from the Department of Motor Vehicles in the amount of $750 for a grand maximum total cost of $993.

The second type of breath testing device utilized in DWI cases is a chemical breath test. This is a more accurate testing instrument and the results of this test ARE admissible as evidence against you in court to prove your BAC at the time you were driving. The two most commonly used chemical breath test devices in Central New York are the Datamaster DMT and the Drager Alcotest 9510. These larger, stationary instruments are housed at the police agencies’ department or barracks. The chemical breath test is not given until after a motorist has been placed under arrest for DWI and taken to the police station.

Since the numerical BAC results of the chemical test are admissible in court, the driver faces more sever consequences if he or she refuses to take this test. Assuming the officer has made a legal arrest and the motorist has been properly advised of the consequences of refusing the chemical breath test, a refusal results in sever license sanctions against the driver. Under New York’s “implied consent” law [VTL Sec. 1194 (2)(a)], any motorist who refuses a chemical test result will (subject to a DMV hearing) have their driver’s license revoked for a period of one year. This revocation is effective regardless of the outcome of the DWI case in criminal court. Such a refusal revocation prevents a motorist from obtaining a hardship license when their license is suspended pending prosecution of the DWI charge at arraignment as well as obtaining a pre-conviction conditional license while the case is pending.

So, if you are pulled over and the officer suspects you have been driving under the influence, we recommend following our Do’s and Don’ts for being pulled over in New York State and contact a DWI lawyer as soon as possible to defend you against those DWI charges. A good DWI attorney will help walk you through your case and put you on track for the best possible outcome. If you or someone you know has been charged with DWI, we can help. Call us at 424-TEAM (424-8326) for a free consultation, fill out our contact form here, or email us at Info@TeamGreenLawyers.com. At Cambareri & Brenneck, we’re working to give you back your life.