Breath Screening Test vs. Chemical Test

In almost every DWI case in New York State there are two tests of a motorists Blood Alcohol Content (BAC) but they are very different tests and treated under the DWI law in a different manner. Many DWI arrests in Westchester, Orange, Rockland, Putnam, Dutchess counties involve these two tests and create confusion for those arrested for DWI offenses.

This DWI blog will discuss the "breath screening test". By contrast a DWI Chemical Test is a test usually done via breathalyzer, urine or blood test. The breath screening test is the test usually preformed at the arrest scene utilizing a hand held instrument about the size of a cell phone. The motorist blows into this handheld device and a BAC number registers. Typically this number is greater than the later DWI chemical test.

A breath test pursuant to VTL 1194(1)(b) refers to a preliminary test of a DWI suspects breath for the presence of alcohol. The device used is called an Alco-Sensor or PBT. A refusal to submit to this breath screening test is a traffic violation.

The DWI Laws make it clear that a motorist is under no obligation to submit to a breath screening test unless the motorist has been involved in and accident or committed a VTL violation. This test is a search within the meaning of the 4th amendment and can only be done with probable cause.

Importantly the Alco-Sensor test is not admissible at trial but the Courts have held that testimony regarding the defendant's attempts to avoid giving an adequate breath sample for Alco-Sensor testing can be admitted into evidence as consciousness of guilt.

Commonly the District Attorney will try to have the test admitted at trial but the top criminal defense lawyers will object as the courts have held this test should not be admitted. In Westchester County DWI arrests the prosecutor usually asks the judge to allow testimony that the motorist failed the test but agree not to disclose the actual results. The best DWI criminal defense is to object to the prosecution strategy as it can prejudice the jury.

In any DWI defense the goal is to limit the amount of evidence the prosecution has against the accused. If enough evidence can be eliminated the productions case can become extremely weak. This is one type of evidence that can be excluded from a jurys consideration during a DWI trial.