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New York Vehicle and Traffic Law 1192.2: Driving while intoxicated; per se

By Spodek Law Group | May 1, 2017
(Last Updated On: May 27, 2023)

In the state of New York, a person is considered legally intoxicated if they have a blood alcohol concentration (BAC) of 0.08 or greater. BAC is calculated by a chemical analysis of the breath, blood, saliva or urine. Under the New York penal code 1192.2, it is illegal to operate a vehicle with a BAC of 0.08 or higher. In many instances, the crime is called “per se” because a person can be charged and even convicted if they are not driving recklessly. Even if the individual is driving normally and within the allotted speed limit, as long as their BAC is 0.08 or more, they can be charged with driving while intoxicated.
Examples of New York Vehicle and Traffic Law Under penal code 1192.2
One example of driving while intoxicated per se is that a woman goes out to dinner with a friend and drinks two glasses of wine with her meal. After she leaves the restaurant and drives home, she is pulled over by a police officer, not because she is driving erratically but because her taillight is broken. While speaking with the woman, the officer detects the smell of alcohol on her breath and requests that she takes a breath test. Her BAC is shown to be 0.82, which is just over the legal limit. Due to the circumstances, the woman could be arrested and charged with driving while intoxicated (DWI) under the law in spite of driving normally.
Another example of this situation is that a man goes out to a bar with coworkers on a Friday after a busy work week. He consumes three beers and chases them down with two shots of whiskey. Although he is driving fine on his way home, a police officer notices that his license plate is half hanging off the back bumper of his car and stops him to inform him of it. However, while speaking with the man, the officer notices that he looks slightly disheveled and smells of alcohol. The officer asks him to take a sobriety test and it’s determined that the man’s BAC is 0.12. The man admits to the police officer that he had a few drinks at a bar after work. Because of his BAC, he could be arrested and charged with a DWI per se.
Defenses for Driving While Intoxicated Per Se
There are a number of defenses that can be used in a DWI per se case. Which one you would use greatly depends on the facts surrounding your situation. For instance, if you have cause to challenge the reason the police officer stopped you, it can be a strong defense if you are able to gather up enough evidence. That would include the results of the field sobriety test and those of the chemical test. Your NYC criminal attorney can also argue that the results of the chemical test were inaccurate. Chemical tests can be tainted if they are improperly handled during the processing and administration processes.
Sentence for DWI Per Se
The crime of DWI per se is charged as a misdemeanor. The penalties for the crime include a fine ranging from $500 to $1,000 or one year in jail or even both. However, if an individual can be charged with a felony DWI per se if they fall under any of the following categories within the past 10 years:
• Driving while intoxicated
• Vehicle assault in the first or second degree
• Aggravated vehicular assault
• Vehicular manslaughter in the first or second degree
• Aggravated vehicle homicide
New York Vehicle and Traffic Law 1192.2(2-a): Aggravated Driving While Intoxicated
Drivers who operate a motor vehicle with a blood alcohol content of .08 percent or more are breaking the law in New York state. Since 2007, the state has also introduced an aggravated DWI charge that carries stiffer penalties compared to a regular misdemeanor DWI. Regardless of what type of impaired driving crime you may be accused of, it may be best to talk to a New York City criminal lawyer to learn how to protect your rights.
What Does the Law Say About This Charge?
A driver may face an aggravated DWI charge if his or her BAC is .18 percent or higher. It is important to understand that a person can be charged with this crime even if he or she is not driving erratically or recklessly.
A prosecutor simply needs to show that you were driving a vehicle at a time when your BAC was .18 or higher. Regardless of what your blood alcohol content is at the time of a traffic stop, a DWI charge may be upgraded to an aggravated DWI if a child under the age of 15 is also in the vehicle.
What Are Examples of Aggravated DWI?
Let’s say that an individual has been consuming alcohol at a bar for several hours before driving home. He has been drinking at least three beers per hour for the last four hours, which would give him a BAC of .24 percent.
If he were to get pulled over for any reason, a police officer could have probable cause to do field sobriety tests or conduct a chemical test. Assuming that the officer has enough evidence to conclude that this man is intoxicated, he could be pulled over regardless of what the initial traffic stop was for.
Let’s also say that the man stopped to pick up his 13-year-old child from soccer practice after having five drinks at the bar in an hour. Although his BAC is only .10 percent, the presence of the child would be enough to charge him with aggravated DWI.
Potential Defenses to Aggravated DWI
Those who are charged with aggravated DWI have many different ways to defend themselves in court. It may be possible to argue that there was a flaw in the way that the test was conducted or in the way that the test was handled that produced an inaccurate result.
A driver may contest the legitimacy of the traffic stop that led to the charge. For instance, a driver may contend that there was no reason for it to be conducted since he or she was following the rules of the road when police made contact. A lack of probable cause could mean that any evidence collected is suppressed or thrown out entirely.
The results of field sobriety tests may be challenged as well. While they generally cannot be used in court as evidence, they may play a role in determining whether a person is charged with aggravated DWI. However, results may be skewed by the presence of a medical condition, being nervous around police or other factors unrelated to impairment.
If you are facing a drunk driving charge, it may be in your best interest to talk with an attorney immediately. He or she may help you avoid making mistakes that could jeopardize your chances at a plea bargain or acquittal. A plea bargain may reduce the charges against you or the penalties that you face. If you win an acquittal, you cannot be tried on the charge again.

In the state of New York, a person is considered legally intoxicated if they have a blood alcohol concentration (BAC) of 0.08 or higher. It is illegal to operate a vehicle with a BAC of 0.08 or more under penal code 1192.2. Charges can still be pressed even if the individual is not driving recklessly. Penalties for driving while intoxicated per se include a fine of $500-$1,000, jail time of up to one year, or both.

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