By definition, driving while intoxicated (DWI) in New York State is the offense of driving while unable to operate a motor vehicle as a reasonable or prudent driver or with a blood alcohol level above .08%. For the accused to be convicted of a DWI misdemeanor, the prosecution must prove four elements:
- Driving/Operating
- A Motor Vehicle
- On a Public Highway
- While Intoxicated
Often, the last element is the most difficult to prove. A person’s intoxication can be shown in one of two ways; either by showing Per Se Intoxication or by “totality of the circumstances”.
Per Se Intoxication
In the state of New York, pursuant to VTL 1192.2, any person who is driving with a blood alcohol concentration (BAC) of 0.08 or greater is guilty of driving while intoxicated per se. “Per se” is a Latin phrase meaning “by itself.” The New York State Legislation has determined that having a 0.08 BAC is illegal, or “per se” intoxication. BAC can be determined by testing a drivers breath, blood or urine.
Under Per Se Intoxication, the state does not have to prove that the driver failed a field sobriety test or that they were weaving in traffic. However, if the arresting officer observes signs of impairment, such as slurred speech or poor driving, the accused may have additional DWI charges filed against them, pursuant to VTL 1192.3, which is based on the totality of the circumstances.
Common Law DWI, VTL 1192.3
In addition to foregoing, under VTL 1192.3, the elements of driving while intoxicated are proven using the totality of the circumstance’s method; this is referred to as “common law” DWI. Totality of the circumstances is a method of analysis where decisions are made off all available information and evidence gathered at the time of arrest. This includes statements made by the accused, their behavior, slurred speech, bloodshot eyes, impaired coordination, lethargic movements, and the smell or presence of alcohol on the accused or in the vehicle.
It should be noted that if a driver in New York refuses to take a breathalyzer test, their license is subject to a 1-year revocation, plus payment of a civil penalty to the DMV.
Working With a Lawyer
If you’ve been arrested or charged with a DWI you should reach out to an experienced DWI attorney as soon as possible. At McCabe Coleman Ventosa & Patterson, we can help fight accusations at every point in the process. Contact us today to schedule a free consultation.