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The Spodek Law Group understands how delicate high-profile cases can be, and has a strong track record of getting positive outcomes. Our lawyers service a clientele that is nationwide. With offices in both LA and NYC, and cases all across the country - Spodek Law Group is a top tier law firm.

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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: October 15, 2023)

Last Updated on: 15th October 2023, 12:52 pm

New York’s Driving While Intoxicated Law – What You Need to Know

New York’s driving while intoxicated (DWI) law – specifically Vehicle and Traffic Law (VTL) 1192.2 – makes it illegal to drive with a blood alcohol content (BAC) of 0.08% or higher. This is known as “per se” DWI because you can be convicted based on your BAC level alone, even if your driving was not impaired[1].

Let’s break down the key things you need to know about this law:

  • If a chemical test shows your BAC was 0.08% or more, you can be charged with VTL 1192.2. It doesn’t matter if your driving seemed fine[2].
  • The most common chemical tests are breath (using a breathalyzer), blood, urine, and saliva. Blood tests are considered the most accurate[3].
  • BAC measures the amount of alcohol in your blood. A 150 lb person would reach 0.08% after 3-4 drinks in 1 hour[4].

Penalties for a VTL 1192.2 Conviction

  • Up to 1 year in jail
  • Fines of $500 – $1000
  • License suspension for at least 6 months
  • $250 annual fee for 3 years
  • Possible ignition interlock device[1]

Penalties get worse if you’ve had a previous DWI conviction within 10 years.

Defenses That Can Beat a VTL 1192.2 Charge

  • Challenge the reason for the initial stop – if there was no probable cause, evidence may be excluded[2].
  • Contest the validity of the chemical test – were procedures followed, was equipment properly calibrated, was there a valid permit, etc[5].
  • Argue your BAC was rising after you stopped driving and was under 0.08% while driving[3].
  • Claim duress or necessity – you had to drive due to an emergency[6].
  • Negotiate a plea deal to a non-criminal offense like DWAI (driving while ability impaired).

What to Do If You’re Charged with VTL 1192.2

Don’t plead guilty without talking to a DWI attorney! A conviction can haunt you for life. An experienced lawyer knows how to investigate the circumstances and challenge evidence. They can get charges reduced or dismissed, minimize penalties, and save your license.

DWI cases require specialized legal knowledge. So contact a local attorney right away if you or a loved one is charged with VTL 1192.2. A free consultation can provide answers and hope. With the right legal strategy, you can move forward with your life.


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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