Accuracy of Breath Tests Being Called into Question around the Country

As a law firm that focuses on solving everyday people problems, one major problem affecting citizens is the accuracy of the Breathalyzers

According to the National Highway Traffic Safety Administration, about 1.5 million people are arrested in any given year for driving while under the influence.  Individuals are stopped by law enforcement for a myriad of reasons. If it is suspected that the driver of the vehicle has been drinking, they will be asked out of the vehicle to perform several field sobriety tests.  If the individual fails these tests, the individual will then be asked to blow into a breathalyzer.  If the results of the breath test are .08 or higher, you will be charged will driving while intoxicated.

For years, the breath test has been the bedrock of proving the guilt of an individual in the criminal justice system.  However, a recent New York Times investigation found that these tests are unreliable.  In New Jersey and Massachusetts alone, judges have thrown out more than 30,000 breath tests in the past year because of lax government oversight and human error.  The Times reviewed tens of thousands of pages of court records, contracts, confidential emails, and corporate filings and interviewed over 100 lawyers, scientists, executives, and police officers and found the following:

  • In the State of Pennsylvania, a county court judge called it “extremely questionable” whether any of his state’s breath tests could withstand serious scrutiny.
  • A panel of judges in Florida described their test’s breath test machines as “magic black boxes” with “significant and continued anomalies.”
  • Vermont’s toxicology lab examined machines from four manufacturers in 2005 and found CMI’s Intoxilyzer 8000 gave inaccurate results on almost every test. However, the device was being used in multiple states, including Mississippi, Ohio, and Oregon.
  • In 2009, Washington State spent over 1 million dollars to implement new machines and chose the Alcotest 9510 despite a report from their scientists that stated the machines “were not ready for implementation.”
  • In a court case in Colorado in 2016, it was discovered that there were widespread problems with how the state forensic lab implemented the use of more than 160 new Intoxilyer 9000s. A lab technician testified that in this defendant’s case, his manager ordered him to destroy records from the tests, as well as the manual for the Intoxilyzer, in case the defense attorneys tried to subpoena records.
  • In the Metropolitan area of D.C., Ilmar Peagle was hired in 2010 to test its Intoxilyers. Peagle found that every machine was generating results that were 20 percent to 40 percent too high.  Additionally, he found the chemicals being used to set up the machines were too old and lost their potency.
  • Last year, a judge in Minnesota found that the states breathe test machines were rounding up results, which falsely pushed some defendants over the legal limit.

Despite all of this, it is next to impossible to obtain a machine for inspection as the manufacturers will not sell them to the general public.  Defense attorneys have been fighting for years to examine the machines and their software forensically.  The reason is to attempt to inspect the codes which could reveal built-in flaws the devices use in their calculations.  Courts in New York State have repeatedly denied requests to obtain the machine codes. Dennis Nave, Managing Partner for Nave Law Firm, which also operates the DWI GUYS brand, feels that these inaccuracies are entirely unacceptable. Citizens should be demanding that more reliable testing be used in prosecuting these types of cases. If I were a defendant and worried about my license and my freedom, I would not want a machine with these types of errors determining my guilt or innocence. It is the job of Law enforcement and the DA’s office to prosecute these cases.   I do not believe it is too much to ask that they use the best evidence possible or the most reliable. It could be just as easy for law enforcement to request a blood draw.

Even with all the issues coming to light within the inaccuracies of the breath test, every state punishes drivers who refuse to take one when ordered by a police officer.  Law enforcement must ensure the accuracy of these tests as individuals’ lives and freedom are at stake. Mr. Nave states THIS needs to happen immediately to recodify the issues.

Do not drink and drive, however, if you find yourself in a position whether or not you should take a breathalyzer, call us at 1-800-DWI-TEAM.



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Nave Law wins suit against City of Albany to protect Reverend’s civil rights.


As part of Nave Law Firm’s efforts to give back to the communities we practice in, our own Derek Andrews took action after reading a Times Union article about a local woman’s plight against a local government who stonewalled her efforts to obtain body camera recordings of an incident that involved her.


In 2019, uniformed members of the Albany Police Department wearing body cameras forcibly removed Reverend Cheryl Hawkins, a street-reach minister in the New York Capital District, from a public park as she preached and sang Christian hymns, for which she had received a special event permit from the City of Albany. That removal violated her constitutionally-guaranteed rights to free expression. As part of a lawsuit, her civil rights attorney requested those body camera recordings from the city through New York’s Freedom of Information Law but was rebuffed, having been told that they were protected and confidential because of Civil Rights Law Section 50-a.


Mr. Andrews helped both Ms. Hawkins and her civil rights attorney by filing an Article 78 special proceeding, a type of lawsuit, against the City of Albany and the Albany Police Department, claiming that they violated Ms. Hawkins’ right to free access to body camera recordings of that incident.


Although the city produced those recordings before the conclusion of the lawsuit, Judge David Weinstein of the Albany County Supreme Court agreed with Mr. Andrews’ arguments when he issued a decision at the end of 2020 stating that Ms. Hawkins had substantially prevailed and that the city was unreasonable in originally denying her access. That last part meant that the city Times Union Article, which resulted in a five-figure settlement. Ms. Hawkins will now continue her lawsuit against Albany for violating her civil rights.


When asked for comment by Reverand Hawkins, she responded:

“Mr. Andrews saw the Times-Union Newspaper Front Page Huge Article (February 17, 2020). He then contacted my attorney and wanted to see how he could help.  He felt that I was facing an injustice.  I was already paying another lawyer big money to represent me, and I could not afford a second law firm.  Derek then spoke with the leadership team with Nave Law Firm, and the team decided to take the case at no cost to me.  

I was so grateful that he believed in me enough to advocate for me and cared enough to help me at no cost.

The best part is that he WON THE CASE; he even won the city’s and the cop’s appeal filed in Albany County after winning the case.”


Nave Law Firm is grateful for the opportunity to have assisted Ms. Hawkins in her pursuit of justice.



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Decriminalizing Possession of Hard Drugs

Oregon seems to be leading the way in the war . . . on the war on drugs while New York falls further behind. In a more sizable margin than either Biden or Trump would secure in this election, nearly 59% of citizens in Oregon voted to decriminalize possession of small amounts of hard drugs like heroin and cocaine.

Their decision also supported greater access to treatment for those who need it, which is paid for by the tax proceeds from marijuana sales. New York took a step in the right direction when they decriminalized possession of marijuana last year, but they remain several steps behind a large swath of the country that has legalized marijuana possession outright, including our next-door neighbors. While legislators and Governor Cuomo are interested in legalization, it’s unlikely to happen in the next year or two. Here’s why the legalization of marijuana, and other drugs, is worthwhile: not only would it ameliorate years of disproportionate effects of criminal drug possession on communities of color but it would give those with addictions greater access to higher-quality treatment. It also wouldn’t hurt to make some money by taxing those “products,” which could prove to be cleaner and safer than those cut with harmful and toxic chemicals. By the way, we certainly don’t mean to imply that it should be legal to drive while impaired by a drug, whether it’s legal or illegal. Please don’t do that.

We’re only suggesting that the war on drugs was misguided and that Oregon, and other states who are following suit, are headed in the right direction. Let’s convince New York to do the same.

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New York State Driver’s License Issues

After receiving notice that your New York driver’s license has been revoked or suspended, it is easy to feel overwhelmed and uncertain about how to respond. During this difficult time, it is important to remember that you have the opportunity to fight for your driving privileges. An experienced New York driver’s license attorney can support you during this process. It also helps to arm yourself with as much knowledge as possible about suspended and revoked licenses in New York State.


Reasons People are Summoned to Hearings in New York

Various factors might lead a person to be summoned to appear before the New York Department of Motor Vehicles for a hearing, but some of the most common reasons include:


  • Alcohol-related offenses like drunk driving.
  • Involvement in a deadly accident or an accident that resulted in a serious injury.
  • Refusing to submit to a breath test.
  • The accumulation of too many points on a person’s driver’s license.
  • Traveling at high speed.
  • Medical review.
  • Failure to pay tolls.
  • Driving under the influence of alcohol when under 21.

Suppose your license has been revoked or suspended. In that case, a skilled traffic attorney can help create a plan to get back to driving as soon as possible while also helping you address fines, points,and limiting how the event will impact your motor vehicle insurance moving forward.


Restricted/Conditional Licenses in New York


Even though license suspension is a common result of many driving-related offenses in New York, drivers are still sometimes able to obtain either conditional or restricted licenses for purposes like commuting to work or school, transporting children to daycare, attending court-required classes, and traveling to medical appointments.


One of New York’s driving law’s most confusing areas is the difference between conditional and restricted licenses. The Department of Motor Vehicle issues conditional licenses to qualified drivers whose New York driver’s license was suspended or revoked due to an alcohol or drug-related violation. The Department of Motor Vehicles can also issue a restricted use license to a driver who qualifies and whose license is either suspended or revoked due to violations or incidents that are not alcohol or drug-related.


Suppose a person in New York State has had a conditional or restricted license issued within the past five years. In that case, the Department of Motor Vehicles will sometimes issue a restricted license provided the individual’s license was not revoked for alcohol use, criminal violations, or drug use.


If a person has not had a conditional or restricted license issued within the last five years, the individual might be eligible to complete an Impaired Driver Program. On successful completion of this program, an individual will receive a “Notice of Completion,” which in some cases will result in a person’s license being automatically restored or a person becomes eligible to apply for a new license. Remember, however, that a person will be dropped from the program and unable to obtain a conditional license if he or she does not attend class, does not satisfactorily participate, or does not pay program fees.


Multiple Alcohol or Drug-Related Driving Convictions

If your license is revoked and you have three or more DWI/DWAI-Drugs/DWAI convictions on your license, the DMV may be denying your ability to get relicensed. There are specific rules about your ability to get relicensed when this occurs.


If you have three or four alcohol/drug-related convictions, the DMV will likely deny your ability to get relicensed for a minimum of 5 years. If you have a serious driving offense on top of the three or four alcohol-related offenses, the DMV will deny your ability to get relicensed FOR LIFE.


If you have five or more alcohol/drug-related convictions, the DMV will deny your ability to get relicensed FOR LIFE.


If your license has been revoked because of multiple convictions, a skilled traffic attorney can help create a plan so you can get back.


Numerous Suspensions on Your License

If your license is suspended because you failed to answer traffic infractions or pay a fine, you could be charged with a misdemeanor or even a felony the next time you get pulled over.


The reason for this is because every time you fail to answer a traffic infraction or fail to pay a fine, the Court will put a SCOFF, or a suspension, on your license.


You must speak to an attorney about your license status if you fall into this category. An experienced attorney will know how to handle and take care of the suspensions on your license so that you can drive free and clear.


How a New York Driver’s License Attorney can Help

Whether you need counsel at a DMV hearing, it is your first time DWI, you failed to answer a traffic infraction, or you have multiple convictions, an experienced attorney can help you get your license back.


Contact an Experienced Driver’s License Attorney

If you are convicted of a driver’s license offense in New York, you can end up facing some serious consequences. One of the best ways to handle these charges is to retain the assistance of an experienced attorney. Contact Nave Law Firm at 855-349-NAVE (6283) today.

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