An Introduction to
New York State DWI (Alcohol) Laws
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 Anelli Xavier, PC 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.
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