New York DWI laws (also known elsewhere as “DUI” laws), can be prosecuted under two different legal theories. Under the first one, a person can be prosecuted for violating the “per se” law, which is based on the alcohol content in the blood at the time that the motorist was driving. In New York State, a person will be accused of violating the “per se” DWI law if he or she drives with a blood alcohol content (“BAC”) of .08% or higher. Under the second theory, a person can be prosecuted under the traditional “common law” if, based on all of the evidence gathered in the course of the investigation and arrest, the investigating officer feels that driver was “intoxicated.”
If you’ve given a breath or blood sample for the police to measure your BAC, you will be prosecuted under both theories. If not, you will be prosecuted under only the “common law” theory. When a person is prosecuted under the “common law” theory, measurement of that person’s BAC is not required. The motorist may be arrested and prosecuted based solely on the observations and opinions of the investigating officer(s).
In New York State, a person may also be arrested if the police officer feels that the motorist’s ability to drive has been “impaired” by alcohol. This is a lesser charge than DWI called Driving While Ability Impaired by Alcohol (“DWAI”), and generally carries with it somewhat lesser consequences than DWI.
Under New York State law, the word “impaired” means that a motorist’s “physical and mental abilities” necessary to operate a vehicle in a “reasonable and prudent manner” have been “actually impaired, to any extent,” by alcohol. The word “intoxicated,” however, refers to a motorist who alcohol has rendered physically and mentally “incapable” of driving a vehicle in a “reasonable and prudent manner.” The quotes from the preceding sentences come from the case of People v. Cruz (48 N.Y.2d 419, 423 N.Y.S.2d 625, 399 N.E.2d 513 [1979]), which is the case widely accepted in New York State to have solidified the definitions of these terms as they are applied today.
“Aggravated” DWI, which is a new, “per se” DWI law, results in harsher penalties than the “common law” and standard “per se” DWI laws. A person will be accused of Aggravated DWI when he or she drives with a BAC level of .18% or higher.
Contact Chris Rodeman if you or a loved one finds yourself accused of Aggravated DWI, DWI, or DWAI. We’ll help you make the right decisions for your case, the first time.
After you’ve been charged with driving, boating, or snowmobiling under the influence of alcohol or drugs, it’s important for you to retain legal representation as soon as possible.
Some of your friends or loved ones may advise you to represent yourself in court, or to retain an attorney who does not concentrate their practice in DWI. However, given the deceptively complex nature of the charges, and their heavy consequences, you could find yourself without a driver’s license or in jail without really understanding what you (or your lawyer) did (or didn’t do) to place you in that situation. You could accept a plea bargain that you shouldn’t accept under the circumstances. You could make a critical mistake that prevents you from getting your license back in a timely manner. New York State arrest and criminal records will generally remain for the rest of your life. Consequently, you could also spend the rest of your life learning the “hard way,” in hindsight, about the consequences of the potentially poor decisions you made without the benefit of competent DWI defense counsel. By that time, however, the damage will have already been done.
The following are the New York State drug and alcohol related charges that can result in criminal and/or administrative penalties against the accused:
• DWI: Driving While Intoxicated; .08 BAC or higher, and/or other evidence of intoxication.
• Aggravated DWI: .18 BAC or higher.
• DWAI: Driving While Ability Impaired by Alcohol; .06 BAC to .07 BAC, and/or other evidence of impairment by alcohol.
• DWAI: Drug: Driving While Ability Impaired by the Use of a Drug (i.e., that is not alcohol).
• DWAI: Alcohol/Drugs: Driving While Ability Impaired by the Combined Influence of Drugs or Alcohol and Drugs.
• Zero Tolerance Law: The motorist is under 21 years old and possesses a BAC of .02 to .07.
• DWI Chemical Test Refusal: A motorist who refuses to submit to a chemical test (normally a test of breath, blood, or urine) will suffer a revocation of his or her driver’s license for at least one year, and will have to pay a civil penalty of at least $500 to the Department of Motor Vehicles.
