Breath Test

Mr. Fisher most often defends individuals who after being arrested for Driving While Intoxicated ("DWI") submit a chemical sample of their breath. This breath sample of the accused is typically captured and analyzed on software created by the breath machine's manufacturer, known, in most cases, as CMI. In New York, by virtue of having a driver's license, which is a privilege given to you by the Department of Motor Vehicles, you, the motorist, implicitly consent to provide law enforcement with a chemical sample of your blood, breath, urine or saliva so that law enforcement can determine whether the amount of alcohol in your blood is at or above .08 of 1%.

It is incumbent on law enforcement to read you, what are often referred to as, the "implied consent warnings," before providing or refusing to provide law enforcement with a chemical sample. These warnings must be read to you. If they are not read to you, the chemical sample of breath that you provide law enforcement can not be used against you, regardless of whether there is at least a .08 of 1% concentration of alcohol in your blood ("BAC"). In all cases, where there is a request made by law enforcement to have you submit a chemical sample of your breath, you have the right to refuse to provide law enforcement with the breath sample. If you do refuse to provide law enforcement with a chemical sample of your breath, a hearing will be held, which is administrative in nature, and involves the Department of Motor Vehicles. There, if it is proven by substantial evidence that law enforcement had probable cause to arrest you and that you, after being read the "implied consent warnings," refused to provide law enforcement with a chemical sample of your breath, your driver's license will be, in most cases, be revoked for one year. This one year revocation is severe, and, even if you are found "not guilty" of the criminal charge of DWI, the revocation for one year continues.

Fred Fisher is almost always asked by his clients whether they should or should not provide law enforcement with a chemical sample of their breath. There is no right or wrong answer to this question. It is Mr. Fisher's opinion that if you have consumed more than one 12 ounce can of beer or more than one drink, or mixed drink, of an alcoholic beverage, then you should not take the breath test, notwithstanding the fact that your refusal if found to have occurred by substantial evidence results in the revocation of your driver's license for one year. It should be noted by all motorists, especially those motorists who operate a motor vehicle after having consumed alcoholic beverages, including beer or hard liquor, that, in most cases, if you are found guilty of DWI, the Judge will most likely order you to attend the drinking driving program ("DDP"). The advantage of participating in the DDP is that participation in the program will result in your getting a conditional driver's license. A conditional driver's license will provide you with the right to operate your motor vehicle from your home to your place of employment and from your place of employment back to your home. Furthermore, if you or a child that you have in your immediate family, need medical attention, you will be able to take yourself or your child to a health care provider, provided you have, at least, a conditional driver's license. Your conditional driver's license will also enable you to drive a motor vehicle for three (3) consecutive hours on either Saturdays or Sundays each week that your conditional license remains in effect. The period of time that you may have to drive, with restrictions, imposed on you, by a conditional license could approach one (1) year, usually if you are found to have refused to submit a chemical sample of your breath, blood, urine or saliva. The DDP usually lasts for seven (7) consecutive once per week sessions. It is very important to take this course very seriously. The reason for that is that it is possible for the instructors of the DDP to refer you for further counseling, beyond the seven (7) weeks. Therefore, if you are directed to cut out three (3) articles from the newspaper that have anything whatsoever to do with drinking and driving, you should make an attempt to cut out six (6) articles. The bottom line is that if you are ordered to participate in New York's DDP that it is in your interest to take the course very seriously and participate when permitted, especially if given "homework assignments."