Understanding DWI "Per Se" in New York

Driving While Intoxicated “Per Se”: NY Vehicle and Traffic Law § 1192.2

New York Vehicle and Traffic Law § 1192.2, Driving While Intoxicated “Per Se” criminalizes the operation of a motor vehicle with a blood alcohol content (“BAC”) of .08 or higher. The statute’s “per se” classification eliminates the need for proof of vehicle operation impairment. Instead, a BAC of .08 or higher is deemed sufficient to establish intoxication.

VTL § 1192.2 DWI STATUTE

“No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva.”

To secure a conviction, the prosecution must present evidence of the defendant’s BAC, obtained through chemical testing of breath, blood, urine or saliva. Consequently, the prosecution’s case will depend heavily on the chemical test results. Consider the following scenario.

HYPOTHETICAL SCENARIO

Suppose you were pulled over for any of the following reasons: speeding, illegal left turn, failure to obey a traffic control device. The officer, upon requesting license and registration, claims to smell alcohol emanating from your car and the appearance of glassy and/or red eyes. The officer instructs you to exit the vehicle and administers a field sobriety test. Based on the officer’s observations, he places you under arrest and transports you to the precinct, where you submit to a Breathalyzer, resulting in a BAC of .10.  The District Attorney’s Office charges you with Driving While Intoxicated “Per Se”.

PENALTIES

Driving While Intoxicated “Per Se” is often classified as a misdemeanor, carrying serious ramifications. For a first-time offense, penalties can include:

A fine ranging from $500 to $1,000

Imprisonment up to one year

Six-month license revocation

Probation

Ignition interlock device

Three-year driver responsibility assessment fee of $250

Impaired Driver Program

However, if the individual has a prior conviction under New York Vehicle Traffic Law 1192 within the preceding ten years, the offense can be elevated to a felony and subject to enhanced penalties.

DEFNSE

A Driving While Intoxicated “Per Se” charge alone is not indicative of guilt. Several factors may be considered to challenge a conviction, including the basis for the traffic stop, the administration of field sobriety tests, and the efficacy of the chemical results.

LEGAL REPRESENTATION

Given the serious consequences of a DWI conviction, it is imperative to seek legal counsel to advocate for your rights and interests. The attorneys at Mahon Rider McKay offer strategic and dedicated representation aimed at achieving the most favorable outcome on your behalf.