Two Hour Rule and Accuracy of New York City BAC Results

Section 1194 of the Vehicle and Traffic Law governs the testing for alcohol content by law enforcement of New York motorists. By its terms, you are deemed to consent – by operation of law – to a chemical test of blood alcohol content (BAC) on the basis of probable cause of driving while intoxicated by alcohol or impaired by a controlled substance. Although primarily an enforcement mechanism for New York’s DWI offenses which rely on BAC results, VTL § 1194 historically functioned as an important role for the defense: ensuring that any positive results from a Breathalyzer test or similar device were a fair reflection of intoxication level at the time of driving and, therefore, were fairly indicative of guilt or innocence for either of the misdemeanor crimes of Per Se or Aggravated Per Se DWI. See People v. Victory, 166 Misc.2d 549 (Crim. Ct. Kings Co. 1995). For years, to ensure this purpose was met, courts refused prosecutors’ use at trial evidence of blood alcohol content measured more than two hours after arrest. See People v. Brol, 81 AD2d 739, 740 (4th Dept. 1981) (holding “unless the test is taken within the two-hour time limit … the results are not competent”); People v. Keane, 76 AD2d 963 (3rd Dep’t. 1980) (same, inadmissible).

Unfortunately, the “Two Hour Rule” serves as a perfect example of how politics and the media have come to shape many of the criminal laws in New York and often at the expense of the criminal defendant. As suburban politicians and prosecutors railed against the proliferate spread of drunk driving accidents and deaths during the 1980s, courts began cutting back on the “Two Hour Rule,” at least as to how it applied to chemical test results of alcohol content obtained by “consent.” People v. Mills, 124 AD2d 600 (2nd Dep’t. 1986); see also, People v. Abel, 166 AD2d 841 (3rd Dep’t. 1990) (same, admissible). A position that ultimately prevailed in New York’s highest court, the Court of Appeals in People v. Atkins, was that “the two-hour limitation” of VTL § 1194 has “no application where” a “defendant expressly and voluntarily consents to a blood test” on alcohol content. 85 NY2d 1007 (1995). A decision shortly expanded to include the results of all “chemical tests administered pursuant to a defendant’s actual consent,” People v. Zawacki, 244 A.D.2d 954 (4th Dep’t. 1997), and even to the “evidence of a refusal to take such test.” People v. Ward, 176 Misc.2d 398 (Richmond Co. Sup. Ct. 1999). The erosion of these rights impact all those arrested for DWI offenses in New York City.

While substantially declawed by decades of unfavorable court rulings, blood alcohol content measured more than two hours after arrest still presents the same concerns of reliability and accuracy that served as the reason for their inadmissibility at trial in the first place: BAC results obtained more than two hours after arrest are a poor indicator of blood alcohol content at the time of driving given the natural metabolisms of the human body. Retaining top New York City DWI lawyers ensures any issue of staleness of evidence, as well as other questions undermining the reliability of the state’s objective evidence of your intoxication, are fully explored and taken into account by both the prosecutor and the court in the resolution of your DWI case.

Begin the process of taking back control of your life by hiring experienced New York City DWI lawyers for the crafting of an appropriate defense to your New York, Brooklyn, Queens, Long Island and Westchester DWI case. Speak to our New York City DWI attorney at the Law Offices of Jeffrey Lichtman at (212) 581-1001 today to schedule a free consultation for our services.

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