If you have been arrested for suspicion of driving while
intoxicated, (DWI) be advised there are numerous factors that
can work in your favor and result in the dismissal of your
case. DUI help is only one phone call away.
For a conviction to be rendered, the burden of proof is on the
People of the State of New York, meaning the arresting officer
and the prosecution. All aspects of the charges must be
proven, which includes but not limited to proper
administration of sobriety tests, chemical tests, probable
cause and search and seizure protocols and following the law.
Each of these human, mechanical or procedural factors are
subject to error. We review all of them and determine which
can work in your favor.
Our Office can help with DUI
Advice, DUI Penalties, DUI Laws, DUI Charges, DUI Defense, DUI
Arrest, DUI Felony, DUI Misdemeanor, DWI Penalties, DUI
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ARRESTING POLICE OFFICER ERROR.
The judgment of the officer who stopped you could be in error
for any number of reasons. Furthermore, his administration of
correct procedure after the arrest could be improper. Here are
examples of what can hurt the prosecutions case and therefore
THE OFFICER FAILED TO READ YOUR MIRANDA RIGHTS.
If you are taken into custody or the police question you with
the purpose of eliciting an incriminating response, they must
read you your rights beforehand. If he fails to read you your
Miranda rights and obtain a valid waiver of these rights, then
any statements obtained after arrest, as long as they are the
result of officer questioning and not so-called “spontaneous,
unsolicited statements”, will most likely be thrown out of
THE OFFICER DID NOT HAVE PROBABLE CAUSE FOR STOPPING YOU.
After the officer stops you, he may not arrest you, put you in
handcuffs and take you away for administration of chemical
tests unless he has evidence that the crime of drunk driving
has occurred. If this happens, you are entitled to what is
termed suppression hearing during which a judge determines
whether the arresting officer had probable cause. At these
hearings, the officer is cross-examined by us, and while the
judge usually sides with the prosecution, the defense has the
opportunity to expose problems with the investigation. As a
result, the District Attorney often times will lessen the
charge or work with us to settle the case.
THE OFFICER MISTOOK THE REASON FOR FAULTY DRIVING.
Sober drivers make mistakes all the time: inappropriately wide
turns, weaving in and out of traffic, drifting out of their
lanes. Drivers talk on cell phones or become distracted by the
kids. The officer can mistake any of these as signs of drunk
driving, when in reality they may be nothing more than
unsteady driving from a merely inattentive, but sober driver.
Further, fatigue can cause a
driver to exhibit these same erratic driving responses. The
officer could have confused the miscues of a drunk driver with
those of someone who is drowsy and exhausted.
YOU WERE STOPPED WITHOUT JUSTIFICATION.
You may not be pulled over arbitrarily by a police officer.
There must be reasonable suspicion substantiated by specific
articulable facts foe an officer to stop you. It this standard
cannot be metin a suppression hearing, as described above,
your case will likely be dismissed.
THE OFFICER MISJUDGED THE LEVEL OF INTOXICATION.
The Alcohol Behavior Research Laboratory at Rutgers University
did a study, which demonstrated that police were no better at
judging intoxication levels than were bartenders or social
drinkers. Furthermore, none of these groups were able to judge
levels of intoxication accurately more than one quarter of the
time. When a prosecutor makes an appeal to the jury based on
the officer’s ability in this regard, his opinion deserves to
carry no special weight.
Additionally, police officers
ordinarily cite smell of alcohol on the breath as proof of the
suspects intoxication. Any chemist knows that alcohol
(ethanol) has no odor. What causes the smell of alcohol are
the other agents in the beverage. Drinking non-alcoholic beer
will give the breath the odor that many officers will claim is
the smell of alcohol. All that the odor of alcohol on the
breath can indicate is that the suspect probably consumed some
alcohol recently. It does not confirm that ones blood alcohol
content (BAC) is greater than .08% level required to
demonstrate legal intoxication.
THE OFFICER FOUND NO INDICATION OF MENTAL IMPAIRMENT.
Toxicologists know that a degree of mental impairment always
precedes physical impairment, if the impairment is being
caused by the consumption of alcohol. Police officers often
report that persons they arrested were coherent in
understanding and answering questions, and following
directions throughout the investigation and arrest. It is well
established scientifically, if mental impairment due to
alcohol was not present, then it follows that neither was
physical impairment due to alcohol. There may always be
physical impairment stemming from any number of factors, such
as sickness, injury, age, obesity, nervousness, or just a
general lack of coordination. The prosecution must prove that
any observed physical impairment is caused by the alcohol in
LACK OF CORRELATION BETWEEN SPEEDING AND DWI.
While speeding is against the law in itself, studies have
demonstrated that speeding is not the correlative factor to
driving while intoxicated. A speeding driver is as likely to
be sober as drunk, and so speeding is not evidence that the
driver is drunk. An officer alleging that he pulled a driver
over for speeding as evidence of DWI maybe basing his action
on invalid assumptions.
THE OFFICER MISTOOK OTHER SYMPTOMS FOR INTOXICATION.
Police use preprinted forms filing DWI reports. These contain
boxes which the officers simply check off to indicate that the
suspect had “bloodshot and watery eyes,” “slurred speech,”
“unsteady,” and a “flushed face.” In New York State there are
presently no video cameras in the police cars, so these
statements are usually left unchallenged by an inexperienced
As we all know, numerous other
conditions can cause these symptoms. Allergies, exhaustion,
sleeplessness or eyestrain could make ones eyes bloodshot.
Anger over the traffic stop could cause ones face to flush.
Embarrassment or becoming flustered could cause one to slur
his or her words. Yet, the officer may not take these other
causes into account, however obvious it is that these
behaviors are just as likely to come from causes not related
to alcohol consumption.
BREATH ALCOHOL TESTING ERRORS:
Many factors render Blood Alcohol Levels even more prone to
inaccurate results than field tests.
ERRORS INHERENT IN BLOOD AND BREATH TESTS FOR INTOXICATION.
Assuming that the test machines are in standard calibration
and that the tests were administered flawlessly (a rare
scenario), experts still acknowledge DWI breath tests contain
an error rate of plus or minus .02%, and blood tests have a
error rate of plus or minus .005%. When you add in the factors
below, further questions can be raised about test results.
HEARTBURN CAN GIVE A FALSELY HIGH READING.
The breath test is designed to test the amount of alcohol
present in the air in your lungs. If you suffer from
heartburn, GERD (gastroesophageal reflux disease) or acid
reflux, alcohol from the stomach can travel back from the
stomach to the throat or mouth. When you blow into the breath
test machine, what is measured in these instances is the mouth
alcohol plus the air in your lungs. This can raise your
reading on the test falsely by a factor of 4, meaning that an
actual blood alcohol level of .04 would read as .16, double
the legal limit. If you had just eaten a spicy meal and were
experiencing heartburn when you took the test, you might give
a very high false reading. Even a slight, unnoticeable
regurgitation can result in mouth alcohol being blown on the
MOUTH ALCOHOL FROM OTHER SOURCES CAN ALSO AFFECT TEST RESULTS.
Mouth alcohol can come from sources other than belching or
heartburn. Decaying food particles trapped between the teeth
in dentures, braces, cavities or impactions will tend to form
alcohol in the mouth. So would latent alcohol from having
recently taken cough syrup, cold medicine, homeopathic
preparations, mouthwash or used various breath fresheners.
Like alcohol burped up from
acid reflux, latent alcohol in the mouth from these sources
can also dramatically raise breath test levels.
THE MACHINES ALSO READ OTHER CHEMICALS.
People who work around chemicals can absorb these compounds
and these may show up in lung tissue. Such things as nitrous
oxide, acetonitrile, ethylene, toluene, isopropanol, if found
inn the lung tissue of a DWI suspect, can give a falsely high
reading on the breath test.
Recent exposure to any type of volatile fumes (gasoline,
paint, lacquer, etc.) can falsely elevate test results.
A LOW CARB DIET CAN FOOL THE MACHINE.
When a person is eating a high protein, low carbohydrate diet,
such as the Adkins Diet, the body produces compounds called
ketones during metabolism. When a person then consumes
carbohydrates, as in drinking alcohol, these ketone bodies in
the blood can produce another form of alcohol, isopropyl
alcohol. Most breath testing machines do not distinguish
between the two even though it is only the ethanol that causes
impairment. A falsely high test result can result.
If you are hypoglycemic,
borderline diabetic or if you have diabetes, consumption of
alcohol, even in small amounts, will cause your body to
convert elevated levels of acetone into isopropyl alcohol.
YOUR BLOOD ALCOHOL LEVEL WAS STILL RISING.
When you consumed your alcohol, may have more consequences on
your test reading than how much you consumed. The reason is
because alcohol can take up to 3 hours to absorb fully into
the bloodstream. In other words, your peak Blood Alcohol Level
may come at the station house when taking the breath test and
could be twice as high as your level when you were
particularly if you consumed the alcohol shortly before you
were stopped. Your Blood Alcohol Level may have been .07 when
you were stopped but an hour later at the police station when
the alcohol has been fully absorbed, the test reads .14. No
law mandates a Blood Alcohol Level above .08 at a police
station; it’s the level when you were driving that counts.
This is another potential source of breath testing inaccuracy.
INDIVIDUAL VARIATIONS IN YOUR RATION OF BLOOD TO BREATH.
Across the general population, there is a conversion ration
that breath machines use to convert a breath alcohol reading
to a blood alcohol reading. The machine assigns this value at
2,100 to 1. Fundamental to breath testing, is the assumption
that the subject being tested conforms to this ration.
Scientists, however, have disclosed widely different ratios
among individuals across the population. And, if a person’s
breath-to-blood cvolnversion ratio is lower than 2,100 to 1, a
breath test will reveal a blood alcohol level much higher than
it actually is.
BREATHING TECHNIQUES AND TEMPERATURE CAN AFFECT TEST RESULTS.
Variances in the duration and volume of the breath sample may
result in a false high or false low reading. The machine is
calibrated to receive a breath sample that lasts over 10
seconds in delivery time, which usually translate to the
delivery of approximately 2 liters of air. A longer breath
sample may yield a much higher amount of alcohol being
registered. Conversely, a shallow breath hyperventilating ,may
result in mouth alcohol being blown, again giving a false high
Even breath temperature may affect results. The machines are
calibrated to record breath blown at a temperature of 34 C.,
just a few degrees below normal body temperature. Even a
slightly higher temperature can give a falsely higher reading.
Such can occur from fever, sitting in the back of a hot squad
car, exertion from dancing at a club, sitting in a hot tub and
Due to various physical
conditions such as chronic lung problems (emphysema, asthma,
bronchitis or chronic obstructive pulmonary syndrome) or
dental problems, many persons are not suitable candidates for
breath alcohol testing, yet these same individuals are given
breath alcohol tests day in and day out, with little regard
for the physiological differences among individuals being
tested by one, generic machine.
TEST RESULTS MAY BE CONTAMINATED.
Radio waves generated by any number of electronic devises such
as police radios, radar guns, scanners, computers, etc., can
interfere with electronic circuitry in blood or breath testing
machines. Radio Frequency Interference, or FRI as it is known,
can influence a breath machine and render a false test
reading. While the amount of inaccuracy is difficult to
determine, it nevertheless adds yet one more degree of
skepticism surrounding breath alcohol tests.
A DISCONNECT MAY EXIST BETWEEN INTOXICATION SYMPTOMS AND TEST.
A test reading is only one factor in a DWI case. Sometimes the
test reading is inconsistent with other evidence such as the
field sobriety tests, officer reports of the suspects
behavior, etc. As well, specific symptoms can be observed at
different levels of intoxication and if tghe DWI suspects
other indicators do not conform to what would be expected from
the test results, this disconnect calls the entire case into
question. That is, the expected level of impairment was not
evident at the reported Blood Alcohol Level test results.
DWI Rights & DUI Questions
WE GO TO WORK IMMEDIATELY ON
We listen closely to what led up to and resulted in your DWI
arrest, asking pertinent questions to reveal details to
strategize a tactical defense plan. We become totally familiar
with your case, and allocate plenty of time to address your
Immediately we go to work to
save your driver's license, and investigate your case
beginning with the police report and evidence. We examine
every event and surrounding detail involved, including the use
of breath testing equipment, maintenance records, calibration,
observation periods, certification of operators and blood
testing technicians, and more.
Once we have obtained a copy
of the police report pertaining to your arrest and DWI
offense(s), we examine every aspect to uncover
inconsistencies, inadherence to policies and procedures,
contradictions, and other information that we can put to the
test at your any DMV Hearing in preparation for your criminal
court case. The DMV Hearing can be very instrumental in
serving as a "mock trial", in some cases, where we can test
the strength of the charges against you, and the likelihood
they will stand up to the measure of "beyond a reasonable
We will examine the evidence
against you, and if you submitted to a blood test, we will
request a sample to send to our independent laboratory for an
expert second opinion. We employ toxicologists, criminalists,
private investigators, independent laboratories, alcohol
dependency mediators, and other experts (as needed) to
exhaustively support your defense case. If the results of the
independent lab test differ from law enforcement's claims, we
will obtain documentation such as affidavits from our lab
sources, and if your case proceeds to a Jury Trial, we employ
the full force of our contacts and resources to provide
essential support and testimony on your behalf.
We will visit the scene of
your arrest, the landscape and conditions where you subjected
to field sobriety tests, if applicable. We will match the area
against the police report, and again thoroughly weigh all
contributing and external factors such as the weather and
traffic patterns at the time of your arrest.
We will make a list of all
witnesses, law enforcement personnel, and test technicians to
ensure each person's statement or account of the incident is
corroborative. We will cross-examine all involved parties if
your case proceeds to a Trial.
We will request maintenance,
calibration, & certification records on all breath testing
equipment and personnel, reviewing the administration of tests
for inadherence to procedure or other disqualifying causes.
We will give you all the
information you need to prepare for your first court hearing.
In some instances, we can successfully file a pre-trial motion
at this hearing, in some cases resulting in an an entire
dismissal of the charges against you. If your case does not
proceed to trial, the prosecutor may offer to have your DWI
charges reduced to a traffic infraction.