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I am on a conditional discharge for an aggravated DWI (misdemeanor). I failed my interlock sample. What happens now?

Syracuse, NY |

This was my first " fail " and I am NOT on probation . The conditions of my discharge were to go to evaluation ( done ) , Drinking Driver's Program ( done ) and have the ID installed in my car ( done ) . Do I just get the ID serviced or will this be a much bigger problem ?

I have no idea why I failed. I have not had a drop of alcohol since my arrest in Jan, 2012 (13 months sober!). My heart about exploded when it said I failed. I would like to add that this was not a rolling re-test, just the initial start-up sample, therefore the car was not turned on, so there was no operation of the motor vehcle.

Attorney Answers 4


  1. Why did you fail? Were you drinking? That could be s problem and lead to a violation of your conditional discharge and resentencing.

    I am a former federal and State prosecutor and now handle criminal defense and personal injury/civil rights cases. Feel free to check out my web site and contact me at (212) 577-9797 or via email at Eric@RothsteinLawNY.com. I was named to the Super Lawyers list as one of the top attorneys in New York for 2012. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. The above answer is for informational purposes only and not meant as legal advice.


  2. Failing or testing positive for alcohol through the ignition interlock device can result in a violation of your conditional discharge. If there is any chance of an error in the reading you should have the unit serviced to establish the error. Otherwise you should contact your attorney and discuss this matter with them.
    Good Luck-

    Note: For informational purposes only. Seek an in person consultation with an attorney to be informed about all of your rights.


  3. It depends on the DA/court. Speak to your prior attorney or a new one.

    Joseph A. Lo Piccolo, Esq.
    Immediate Past President, Criminal Courts Bar Association 11'-12'
    Hession Bekoff & Lo Piccolo
    1103 Stewart Ave, Suite 200
    Garden City, NY 11530
    516-408-3666 (o) / 516-408-3833 (f)
    Jlopiccolo@hbclaw.net

    I am a criminal defense attorney practicing in Nassau, Suffolk and New York City. The above information is not a substitution for a meeting whereas all potential legal issues can be discussed.


  4. An ignition interlock device failure could result in the court and prosecutor’s office being notified of the circumstances. In my opinion you should contact an attorney in regards to the following issues:

    1. Were you obligated to have the ignition interlock device (IID) at the time of the failure? (I have seen defendants serve their sentence but due to busy schedules have a delay in getting the device removed from their vehicle thus the failure was beyond the time that the device was required.)

    2. What should you know before speaking with the service technician about the failure? (Technicians are often called as witnesses because they have a working knowledge of the device, the device is in their possession, and because the customer unwittingly made admissions of guilt while speaking with the technitian.)

    3. What evidence exists that the driver who is required to have the IID was actually the one who created the failure? (More than a “failure” is needed to justify a violation of your sentence. That is why advances in the IID have included models with video cameras, photo capability, and fingerprint recognition. An attorney can best analyze your situation after a detailed interview and assist you through your IID issues).

    ***In the future be sure to wait at least 15 minutes after having anything in your mouth before you attempt to provide a breath sample with your ignition interlock device. This allows for the dissipation of residual mouth alcohol and avoids the potential for other materials to create a malfunction. It should be noted that the fuel cell located in the IID only registers a positive BAC reading if the ethyl alcohol is present in the breath sample. Thus, a “failure” does not necessarily mean you have been drinking. Only an analysis of the device will be able to determine the reason for the failure and proceeding with the advice of an attorney is always a good start.

    - Good luck and be safe.

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