One of our Law Clerks, Brandon Hellwig, from our Syracuse office, takes a look into a recent news story with Abby Wambach.

A growing number of people from all walks of life across the United States are being arrested for DWI. Recently this growing trend has been highlighted by the high-profile arrest of retired USA soccer star Abby Wambach. Wambach was arrested for driving while intoxicated in Portland, Oregon. After her arrest, the soccer star was honest with her followers via social media, where she stated “Last night I was arrested for DUI in Portland after dinner at a friend’s house”.[1] In fact Abby Wambach is not the only American Olympic gold medalist to be charged with a DWI recently. Michael Phelps, one of the most decorated Olympic athletes in history, was charged with DWI in 2014 and in 2004.[2] In fact the list of high profile athletes, actors, musicians, and comedians who have been arrested for DWI is quite large. Some examples include Mel Gibson, Reese Witherspoon, Kiefer Sutherland, David Cassidy, and Nick Carter.[3] This begs the question, why are law-abiding citizens and even gold medal Olympians being arrested for DWI?

The Way DWI Laws Are Set Up Is Flawed

In a recent opinion article CNN legal analyst Danny Cevallos discussed why it is so easy for otherwise upstanding citizens to be charged with DWI related offenses. Cevallos distinguished DWI from other crimes because most other crimes violate social norms, to the extent that law abiding citizens would not engage in those types of behaviors.[4] In the alternative however, drinking and driving is a behavior which on its’ face is not actually illegal, yes that is correct, it is not illegal to consume alcohol and operate a vehicle. What is illegal is to consume alcohol to the point of impairment or intoxication and then to operate a vehicle while still impaired or intoxicated.

Furthermore, in New York and other states the law even distinguishes between impairment and intoxication. If you drive while your ability is impaired by alcohol in New York you can be charged with Vehicle and Traffic Law §1192(1), which is not a crime, but a violation. This is important because it does not result in a criminal record, but still results in a driver’s license being suspended for ninety (90) days. On the other hand if you are found to have operated a vehicle while intoxicated by alcohol or drugs, then you can be charged with a misdemeanor, which will result in a permanent criminal record. So essentially what this statutory scheme conveys is that, “if you drive a little bit drunk, we will give you a ticket, but if you drive more than a little drunk, you are facing a crime”. But who is making the determination as to when a person is impaired, or intoxicated, and what criteria are being used? Herein lies the biggest problem, and why so many individuals find themselves charged with a DWI related offense.

Ultimately, in New York an individual can be found to be “impaired” if a police officer determines that the driver has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver”.[5] In New York an individual is found to be intoxicated when 1.) a police officer determines that the individual is “incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver”[6] or 2.) the individual’s blood alcohol content is measured at .08 of one percent or higher. In his CNN opinion article Cevallos makes a great point as to the arbitrary nature of how impairment and intoxication are evaluated, as well as why the government and society’s stance on the subject simply makes no sense. Cevallos points out that a determination of impairment or intoxication is made by either a machine (the chemical breath test), which purports to use a breath sample to measure alcohol in your blood, or by an officer, who has never met you before and is not medically trained.[7] Furthermore Nave DWI Defense Attorneys’s extensive experience with DWI cases has found the results of the chemical breath test to be inaccurate; as a result we routinely consult with a professional toxicologist to determine what an individual’s blood alcohol level was in actuality. Often times a professional toxicologist will come to a conclusion that the accused individual’s blood alcohol level was much lower than the chemical breath test reported it to be.

It is easy to see that the laws surrounding DWI give a great deal of discretion to law enforcement, and anytime the law creates a large amount of discretion, there is room for error. Thus there is no bright-line rule for individuals to conform their actions too, but instead there exists a gray area, where conduct may or may not subject a person to criminal liability. An individual could have two drinks and be charged with the same offense as a person who has had six drinks. Cevallos also makes a great point in his article when he states that this gray area is the equivalent to the government sending a mixed message, because if the government really wanted to put an end to drunk driving, they would simply make a zero tolerance policy for drivers.[8] Instead what we have in place today is a system that that makes it legal to drink and drive, but provides unreliable subjective criteria to determine when someone has drank too much and gotten behind the wheel.


As a result of the ambiguity and inaccuracy surrounding the methods that law enforcement uses to arrest and convict citizens for DWI, otherwise law abiding individuals have had their lives adversely affected. Whether the individual is an Olympic athlete like Abby Wambach and Michael Phelps, or an ordinary hard working American, being charged and convicted of a crime is life altering. Furthermore if the government is going to impose life altering consequences on its’ citizens, then at the very least there needs to be reliable, uniform procedures in place to ensure that no one is falsely accused or convicted.

The exclusive purpose of this article is educational and it is not intended as either legal advice or a general solution to any specific legal problem. Corporate offices for Nave DWI Defense Attorneys are located at 432 N. Franklin Street, Suite 80, Syracuse, NY 13204; Telephone No.: 1-866-792-7800. Prior results do not guarantee a similar outcome. Attorney Advertising.

[4] Id.
[5] People v. Cruz, 48 N.Y.2d 419 (1979)
[6] Id.
[8] Id.