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NY Vehicle and Traffic Law 1192.2 – Per Se DWI – .08 BAC

All states have drinking and driving laws. New York is no exception. However, in New York, there are multiple ways to be a drunk driver. One way to be a drunk driver is to drive while alcohol impairs your ability to drive in a normal manner. Another way to be a drunk driver is to operate a vehicle while your bodily alcohol level is over the legal limit.

What’s the legal limit?

In New York, the legal limit is a .08. That can be measured in your blood, breath or urine. Breath is the most common method of measurement followed by blood. There are different units of measurement that apply depending on the substance that they measure in your case, but in all cases, they work out to a legal limit of a .08. This is the same legal limit that applies in most places in the United States.

It doesn’t depend on your ability to drive

A per se DWI doesn’t depend on how well you drive. You may still be able to drive a vehicle perfectly well at a .08 blood alcohol level. You might even come to law enforcement’s attention because you’re in an accident because of someone else’s bad driving. Law enforcement might pull you over for a minor driving offense and not because of weaving in your lane. In the case of per se DWI, it doesn’t matter.

All law enforcement has to show to prove a per se DWI is that you drove a motor vehicle and that you did it when your bodily alcohol content was a .08 or more. That means they need to gather evidence that you drove a vehicle. They need to show that they gave you a test and that they gave the test properly and with safeguards to ensure its accuracy.

Potential penalties

The penalties for a per se DWI in New York can include fines, jail time and other consequences. Perhaps the most significant possible penalty is one year in jail. A conviction doesn’t necessarily mean that you’ll serve the entire year in jail, but the court has the option to sentence you to that much if they feel that it’s appropriate. They can also place you on probation for up to three years. They may order you to perform community service. The fine ranges from $500 to $1,000.

In addition to these penalties, another consequence that weighs in the minds of those charged with per se DWI is a six-month license suspension. In the case of a test refusal, the license suspension may be up to one year. There may be exemptions available, but in all cases, the potential license suspension waiting for a person convicted of per se DWI is significant.

On top of these penalties, the State of New York wants to help those who have DWI convictions address any drinking issues and help them understand the consequences of drunk driving. They want to make sure that first-time offenders don’t become repeat offenders if there are ways that they can receive treatment and educate themselves on the dangers of their behavior. For that reason, a per se DWI conviction may result in mandatory drunk driving education coursework. You may learn about the dangers of drinking and driving as well as hear from victims and their families about the impact that drunk driving can have on innocent victims.

Defending against a DWI per se charge

To defend against a DWI per se charge, you can work with your attorney to explore whether the test law enforcement gave you was proper. Law enforcement must take steps in order to ensure that their testing equipment works properly. They must take steps to safeguard the accuracy of the test. If they don’t take these steps, the result in your case may not be accurate.

In addition, you may be able to defend yourself against the charges on constitutional grounds. If the police violate your constitutional rights when they gather the evidence in your case, you may be able to ask the court to throw out the evidence. This usually happens on the grounds that the police violated search and seizure laws. The purpose of these laws is to prevent private individuals from having unreasonable police interference in their lives.

Preparing your best defense

When you face a DWI per se charge, you should work with your attorney to consider your best plan for a defense. Your best bet may be to file court motions alleging that the police violated your constitutional rights. You may want to take your case to a jury trial. In your case, it may be best to pursue a plea offer that lessens the potential consequences. Each case is unique, so it’s important to work with your attorney in order to determine the best course of action for you.

by Leonard on Spodek Law Group
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