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