NY Vehicle and Traffic Law § 1192.2: Driving While Intoxicated; per se

In New York the general standard for being considered intoxicated is having a blood alcohol content (BAC) of at least .08. BAC is measured by chemical analysis of the person's blood, breath, urine or saliva. Under the New York Vehicle and Traffic Law § 1192.2 it is against the law to drive a vehicle with a blood alcohol level of .08 or more. This offense is referred to as "per se" driving while intoxicated because you can be charged and convicted even if you are not driving erratically or recklessly. All that the prosecutor needs to show is that you were driving and that at the time you were driving your BAC was at least .08.

A woman goes out to dinner with some friends and consumes 2 glasses of wine. She leaves the restaurant and begins to drive home. However, her taillight is broken. A police officer pulls her over because of the broken taillight. The officer smells alcohol on the woman's breath and asks that she take a field sobriety test. Based on her performance the officer arrests the woman. Tests show that her BAC is above .08. This woman could be charged with driving while intoxicated (DWI) under New York Vehicle and Traffic Law § 1192.2 even though she was not driving erratically or in a manner that is typically indicative of driving while intoxicated. The fact that her BAC was above 0.08 would be enough to charge her with this offense.

1. Driving while ability impaired: New York Vehicle and Traffic Law § 1192.1
2. Aggravated driving while intoxicated; per se: New York Vehicle and Traffic Law § 1192.2(2-a)
3. Aggravated driving while intoxicated with a child: New York Vehicle and Traffic Law § 1192.2-a(b)
4. Driving while intoxicated: New York Vehicle and Traffic Law § 1192.3
5. Driving while ability impaired by drugs: New York Vehicle and Traffic Law § 1192.4

Depending on the circumstances of your case, there are a number of possible defenses to a DWI per se charge. For example, you may be able to challenge the basis for the stop. If the police officer did not have probable cause to stop you, then you may be able to get all of the evidence gathered from the stop suppressed. This would include the results of a field sobriety test as well as the results of the chemical test. Another possible defense is that the results of the chemical test were not accurate. Chemical tests can be tainted if they are not handled properly by those administering and processing the tests.

Driving while intoxicated is a misdemeanor. The sentence will include the payment of a fine of $500-$1000, a jail term of up to 1 year, or both.

Driving while intoxicated will be considered a class E felony if within the prior ten years you were convicted of:

1. Driving while intoxicated
2. Vehicular assault in the second or first degree
3. Aggravated vehicular assault
4. Vehicular manslaughter in the second or first degree
5. Aggravated vehicular homicide

The punishment will be a fine of $1000-$5000 and imprisonment of up to 4 years.

Driving while intoxicated will be considered a class D felony if within the prior ten years you were convicted of one of the above-listed offenses two times. You will be required to pay a fine of $2000-$10,000 and you will be sentenced to a prison term of up to 7 years.

Regardless of whether the conviction is for a first, second or third offense you will be ordered to install an ignition interlock device in your vehicle, designed to prevent you from operating your vehicle while you are intoxicated. The device will remain in your vehicle for at least 6 months. In addition, your license is subject to suspension.

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, made pursuant to the provisions of section eleven hundred ninety-four of this article.

If you are charged with DWI it is important that you are represented by someone with experience handling DWI cases. DWI cases can be complicated, requiring and understanding of DWI law, as well as the administration of field sobriety tests and chemical tests. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts who have been charged with reckless driving, DUI, vehicular homicide, and other serious crimes. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of larceny in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.