When it comes to NY DWI and DWI defense, we have all heard people declare that they can drive because they are below the “legal limit.” However, as this article explains there is no “legal limit” in terms of blood alcohol content when it comes to driving while intoxicated in New York State.
That’s right. There is no limit of blood alcohol content, or BAC, below which you can legally drive. The reason why people believe that there is a blood-alcohol content below which is legal to drive is likely do to the fact that interpretation of laws and statutes is difficult and it is easy to misunderstand what a law means.
So we here it on the news all the time – this guy or that person was “twice the legal limit….three times the legal limit…” We here it so much that we believe there is a legal limit. But, there is not.
here is no “Legal Limit.” Understand that. In reality, what we people commonly call the “Legal Limit” is really an illegal limit.
Brief History of DWI Detection
Before the days of chemical tests people were still arrested for DWI. in fact, in 1910 New York State was the first state to enact a law against driving while intoxicated. The probable cause for the DUI arrest was based upon the cop’s observations. Things such as swerving, hitting curbs, running red lights, not going at green lights, are all an indicia of intoxication. Observations such as slurred speech, confusion, odor of alcohol, bloodshot eyes, are likewise indicia of intoxication. Failing divided attention tests, commonly referred to as field sobriety tests, are also indicia of intoxication. This is known as “common law DWI,” and is and always has been a valid arrest codified in NY VTL 1192.2. This means that a cop does not need a chemical test for probable cause to arrest, and a jury does not need a chemical test to convict. Such prosecution and guilty verdict can be had on observations alone.
It was not until 1954 that the breathalyzer was invented. A breathalyzer is a device that takes a sample of your breath and extrapolates from that sample what the person’s blood alcohol content is. A Breathalyzer is a chemical test, and is one way to determine BAC. The other two ways are through a urine sample or a blood sample.
What the BAC level really means
In New York State a person is intoxicated per se if their BAC is .08 or greater. This does not mean that if a persons BAC is .079 or less they are not intoxicated. It merely means that they are not intoxicated per se, and if the reading is .08 or greater then the person is per se intoxicated; i.e., per say illegal.
What it means to be intoxicated per se
submit to a chemical test and your blood alcohol level is .08 or greater, then you are intoxicated per se. This means that EVEN IF you were driving perfectly well you are still intoxicated within the meaning of the law. EVEN IF the person did not violate a traffic law but had a BAC of .08 or greater they are intoxicated. EVEN IF there was no slurred speech, confusion, odor of alcohol, or bloodshot eyes but the BAC was .08 or greater they are intoxicated. EVEN IF field sobriety tests were administered and passed but the BAC was .08 or greater they are intoxicated. The per se statute is contained in NY VTL 1192.3.
What if a BAC is under .08
Having a blood alcohol content of under .08, although it will not get you off the hook of being prosecuted, is none the less a really good thing. First, only when the BAC level is .08 or greater does a license get suspended pending prosecution. This means that the motorist will have full, unrestricted driving privileges during while the court date is being litigated. Second, you can only be charged with common law DWI under NY VTL Sec. 1192.2, and cannot be prosecuted on a second count of intoxicated per se under NY VTL 1192.3. Which leads to the third benefit of having a BAC under .08 – with no chemical analysis the case against the motorist is week which often leads to a dismissal or a favorable plea bargain disposition.
Your license will still be suspended if convicted
Even if a motorist has a blood alcohol content under .08, if that person gets convicted of DWI or DWAI (driving while ability impaired), that the motorist initially had a BAC of .08 or less becomes irrelevant. The motorist’s license will be suspended within 20 days of the conviction. During that time the motorist will have 20 days to go to the DMV and sign up for the Drinking Driving Program, or DDP. At that time the DMV will pull your unconditional license and issue you a conditional license only. Once the DDP program is successfully complete the unconditional license will then be reinstated ONLY IF this is your first DWI or DWAI. If you have more then one there could be a 1 year wait, a 5 year wait, or you could be permanently ineligible for re-licensing. It all depends upon how many DWI / DWAI convictions you have as well as the totality of your driving history.
If you have been arrested for DWI you could be confused or may have more questions. If this is the case give us a call today. We talk to people like you all the time and would love to answer any questions you may have.