Attacking Breathalyzers And Field Sobriet Tests In Dwi Cases

By Author: David Storobin
Total Articles: 1
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Easily the most important decision a defense lawyer has to make in a DWI case is what defense to present. Once an argument is presented, it is often hard to present another one if the first one fails to impress the jury. Rather than explaining the defendant's position, the lawyer comes off as overly slick, trying to "pull a fast one" on the jury. Thus, once the first argument is made, all following arguments must be consistent.

Here's a list of good and bad arguments:

Never argue that the Defendant was barely over the limit. You can't be a little bit pregnant and likewise you can't be a little bit guilty. If you are guilty, you are guilty and the jury will find you as such. If this is your argument, then the best way to proceed would be to negotiate a plea bargain with the prosecutor instead of going to trial.

On the same note, don't argue that the Defendant didn't realize he was drunk over the legal limit under New York DWI laws. It doesn't matter. The Defendant is responsible for his conduct.

Don't refer to the breath testing equipment as either an "instrument" or a "machine" ...
... because juries view both as being very accurate. Instead, describe the end results and explain why the equipment is not perfectly accurate. The device does not actually test for blood alcohol levels, but estimates it based on a person's breath. However, this ranges tremendously from person to person, and one person may show as much as 200% more alcohol in their breath as another who has the same blood alcohol level.

Don't talk about a "margin of error", which can sound too scientific to most people and bore them as much as a college statistics class. Instead, talk about a range. "An X amount of alcohol in a person's breath can mean a range of blood alcohol from A to B."

Don't attack the police officer as being corrupt unless you have proof. Most jurors will not believe that a cop suddenly decided to frame a perfectly innocent person. Instead, discuss the proper Breathalyzer and Intoxilyzer procedures to show why the police officer did not follow them. For instance, the cop must stand next to the driver for 15-20 minutes prior to administering the test because eating certain foods or even burping can give a "false positive" or at least show higher results.

Fefer to field sobriety tests as preliminary roadside evaluations. Also discuss that they are different in different cities and even precincts.

The jury must understand that neither field sobriety tests nor breath testing equipment is perfect, and can frequently show a false positive. If the jury thinks those tests are perfect or even near-perfect, it will be very hard to convince them that the defendant is not guilty.

Storobin & Spodek LLP has criminal attorneys in Manhattan. The defense lawyers in New York are diligent and able to achieve favorable case outcomes.