NY Vehicle and Traffic Law § 1192.5: Commercial Motor Vehicles: per se - Level 1

There are special rules regarding driving a commercial vehicle while under the influence of drugs or alcohol. Under New York Vehicle and Traffic Law § 1192.5 if your blood alcohol level is between .04 and .06, you would have committed a crime. This standard is much lower than the per se standard of .08 for driving private vehicles. Blood alcohol content (BAC) is measured by chemical analysis of the person's blood, breath, urine or saliva. This offense is referred to as "per se" driving while intoxicated because you can be charged and convicted if your BAC is between .04 and .06, even if you did not drive erratically or recklessly or show other signs of being intoxicated.

A woman drives a class A commercial truck. She does not have to report to work until the afternoon. She takes a friend out for lunch to celebrate that friend's birthday. She has a couple of glasses of wine. The woman then reports to work and starts her route. Because she failed to properly secure the rear door on her truck, a police officer pulls her over. Smelling alcohol on her, the officer requests that she perform a field sobriety test. He ultimately arrests her on suspicion of driving while intoxicated. At the police station she takes a chemical test that shows a BAC of .05. Even though the woman was not driving recklessly she can be prosecuted for under the per se commercial motor vehicle level 1 statute.

1. Driving while ability impaired: New York Vehicle and Traffic Law § 1192.1
2. Driving while intoxicated; per se: New York Vehicle and Traffic Law § 1192.2
3. Aggravated driving while intoxicated; per se: New York Vehicle and Traffic Law § 1192.2(2-a)
4. Driving while ability impaired by drugs: New York Vehicle and Traffic Law § 1192.4
5. Commercial motor vehicles; per se - level II: New York Vehicle and Traffic Law § 1192.6

Because a police officer must have probable cause to pull you over, a possible defense is challenging the traffic stop, arguing that there was no probable cause. If the court agrees with you then the prosecutor will not be able to use any evidence gather after the stop including the results of a field sobriety test and the chemical test, and will likely dismiss the charge against you.

A violation of New York Vehicle and Traffic Law § 1192.5, driving a commercial vehicle while intoxicated per se- level 1, is considered a traffic infraction with a fine of $300-$500, and a jail sentence of up to 15 days. In addition, your driver's license will be revoked for one year. Refusal to take the chemical test will result in your license being suspended for 18 months. If the commercial vehicle that you were driving was carrying hazardous materials, then your license will be revoked for 3 years.

Notwithstanding the provisions of section eleven hundred ninety-five of this article, no person shall operate a commercial motor vehicle while such person has .04 of one per centum or more but not more than .06 of one per centum 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; provided, however, nothing contained in this subdivision shall prohibit the imposition of a charge of a violation of subdivision one of this section, or of section eleven hundred ninety-two-a of this article where a person under the age of twenty-one operates a commercial motor vehicle where a 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, indicates that such operator has .02 of one per centum or more but less than .04 of one per centum by weight of alcohol in such operator's blood.

If you are charged with driving while intoxicated while you were driving a commercial vehicle the fine may be small and you may only have to spend a few days in jail. However, you may lose your job as your license will be revoked for a year. 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.