Challenging Blood-Alcohol and Breath Tests in DWI Cases

If you're pulled over for a DUI arrest and "fail" a blood-alcohol test, don't give up. As a recent New York court case shows, lawyers can use many extenuating circumstances to challenge a guilty verdict.

The case stemmed from an October 17 incident outside a bar in Westchester County. Henry Danroy Jr., a 20-year-old Pace University student, was about to leave the parking lot when a Mount Pleasant officer tapped on his window, asking to speak with him. Instead, Danroy sped toward the lot's driveway. From about 50 feet away a second policeman, Officer Hess, stood in the driveway shouting for him to stop.

But Danroy continued, hitting Hess and throwing him onto the car's hood. Holding on to the windshield wipers "for his life," according to Hess's lawyer, the officer drew his gun and held it to the window while Danroy swerved the car, apparently to shake him off. Hess fired, killing Danroy.

Testing and Timing

Two days later, a blood sample recorded Danroy's blood alcohol level at 0.128 percent, well above New York's 0.08 legal-driving limit. But Danroy's parents dispute that figure. According to a report by WHDH-TV, their lawyer, Michael Sussman, "said the sample was not labeled as to when it was taken [or] from what part of the body. He said that means the possibility exists that the alcohol level increased in the blood between the time Henry was killed and the time of the autopsy." Investigations into the matter continue.

The case illustrates one way, of several, in which chemical test results may not be an accurate measure of your blood-alcohol content, or BAC. Some other ways to challenge BAC results:

  • The training and qualifications of the person administering the test;
  • The use of whole-blood serum, may show higher BAC levels than are actually present;
  • Lack of a search warrant for a blood test;
  • Lack of probable cause to stop or arrest;
  • The nature of the site where the test was taken, and whether you were observed for 15 minutes prior to the test;
  • Misleading calibration during a breath test: The Intoxilyzer 5000 is calibrated to a certain breath temperature. If your breath is warmer, your BAC will appear to be higher.

If you have been arrested for DWI or you are facing DWI charges or a hearing, a criminal defense lawyer with experience defending DWI cases can help you present a strong defense and avoid legal or evidentiary errors.

Related Story:

Coverup alleged in Henry case; alcohol level said to be over limit

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