Vehicle and Traffic Law §1192-2 & 1192[2] (a) requires an analysis of a motorist’s breath for alcohol content. Law enforcement is required to follow the New York Code of Rules & Regulations (NYCRR) Part 59 to ensure the admissibility of that breath sample.
If the NY Code of Rules & Regulations is not strictly adhered to, the breath test sample may be excluded as evidence against the driver. One such regulation requires that law enforcement observe the motorist for at least 15 minutes prior to the submission of the breath test. Law enforcement must safeguard against mouth contaminants entering the mouth either by ingesting something externally or by bringing up stomach fluid containing alcohol. These mouth contaminants could cause falsely high readings on the breath test instrument. The defense can argue the significance of the breath test score if the rules are not followed.
The defense attorney must examine the methods and procedures used by law enforcement to secure a breath sample and challenge the result of that breath test. They must be familiar with the foundational requirements before that test score is admitted into evidence. An aggressive challenge by defense counsel of the breath test score could result in dismissal of that charge.