In New York, Driving While Intoxicated; Per Se is defined under Vehicle and Traffic Law (VTL) § 1192.2. This statute makes it illegal to operate a motor vehicle with a blood alcohol concentration (BAC) of 0.08% or higher, as determined by chemical analysis of the driver’s blood, breath, urine, or saliva. Unlike other DWI charges, a per se violation focuses solely on the driver’s BAC, irrespective of actual impairment or driving behavior.
Facing a Per Se DWI charge can have serious legal and personal consequences. The Kugel Law Firm, led by top-rated New York DWI attorney Rachel Kugel, is dedicated to defending individuals charged with DWI offenses. Our primary focus is DWI and DUI cases, allowing us to provide personalized attention to each case we handle.
Contact us today at (212) 372-7218 to schedule a complimentary strategy session and learn more about how we can assist you.
Elements and Definitions
To secure a conviction under NY VTL § 1192.2, the prosecution must prove two key elements beyond a reasonable doubt:
- Operation of a Motor Vehicle: The defendant was operating a motor vehicle.
- Blood Alcohol Concentration of 0.08% or Higher: At the time of operation, the defendant’s BAC was 0.08% or more, as determined by a valid chemical test.
It’s important to note that evidence of actual impairment or erratic driving is not required for a per se DWI charge; the BAC level alone suffices.
Does NY VTL § 1192.2 Require Proof of Impairment for a Conviction?
NY VTL § 1192.2 does not require proof of impairment for a conviction. It is a per se DWI offense based solely on a driver’s blood alcohol content (BAC) being 0.08% or higher, regardless of actual driving impairment.
Hypothetical Example Based on Case Law
Consider a scenario where an individual is stopped at a sobriety checkpoint. The officer detects the odor of alcohol and administers a breathalyzer test, which indicates a BAC of 0.09%. Despite the driver exhibiting no signs of impairment or erratic driving, the BAC reading alone provides sufficient grounds for a per se DWI charge under NY VTL § 1192.2.
Possible Legal Defenses
Several defenses may be available to challenge a per se DWI charge:
- Challenging the Traffic Stop: Arguing that the initial stop lacked reasonable suspicion or probable cause, potentially rendering subsequent evidence inadmissible.
- Questioning the Accuracy of BAC Results: Disputing the reliability of chemical test results due to improper calibration, maintenance issues, or operator error.
- Procedural Violations: Identifying failures in following proper procedures during the administration of chemical tests, which may compromise the validity of the results.
| Possible Legal Defenses for DWI Charges | Description |
|---|---|
| Challenging the Traffic Stop | Arguing that the initial stop lacked reasonable suspicion or probable cause, which can potentially render subsequent evidence inadmissible. |
| Questioning BAC Test Accuracy | Disputing the reliability of chemical test results due to improper calibration, maintenance issues, or operator error. |
| Highlighting Procedural Violations | Identifying failures in following proper procedures during the administration of chemical tests, which may compromise the validity of the results. |
Penalties
A conviction for Driving While Intoxicated; Per Se under NY VTL § 1192.2 carries significant penalties:
- First Offense (Class A Misdemeanor):
- Fines: Between $500 and $1,000.
- Incarceration: Up to 1 year in jail.
- License Revocation: Minimum of 6 months.
- Additional Fees: $395.00 will be charged to cover the mandatory surcharge fee, crime victim assistance fee, additional surcharge, and alcohol fee for misdemeanor convictions.
- Alcohol Screening and Evaluation: Required assessment for alcohol dependency.
- Ignition Interlock Device: Installation may be mandated for 6 months or longer.
- Second Offense within 10 Years (Class E Felony):
- Fines: Between $1,000 and $5,000.
- Incarceration: Up to 4 years in state prison.
- License Revocation: Minimum of 1 year.
- Additional Fees: $520.00 will be charged to cover the mandatory surcharge fee, crime victim assistance fee, additional surcharge, and alcohol fee.
- Alcohol Screening and Evaluation: Required assessment for alcohol dependency.
- Ignition Interlock Device: Installation may be mandated for at least one year.
- Third Offense within 10 Years (Class D Felony):
- Fines: Between $2,000 and $10,000.
- Incarceration: Up to 7 years in state prison.
- License Revocation: Minimum of 1 year.
- Additional Fees: $520.00 will be charged to cover the mandatory surcharge fee, crime victim assistance fee, additional surcharge, and alcohol fee for felony convictions.
- Alcohol Screening and Evaluation: Required assessment for alcohol dependency.
- Ignition Interlock Device: Installation may be mandated for at least one year.
Additionally, a conviction results in a permanent criminal record, which can adversely affect employment opportunities
New York Vehicle & Traffic Law § 1192.2: Driving While Intoxicated; Per Se
Driving while intoxicated; per se. 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.
How Per Se DWI and Common Law DWI Charges Differ in New York
In New York, DWI charges can fall under two main legal categories: Per Se DWI and Common Law DWI. Both are serious charges, but they are based on different types of evidence.
Per Se DWI, under Vehicle and Traffic Law (VTL) § 1192(2), is based strictly on your blood alcohol content (BAC). If you take a chemical test and your BAC is 0.08% or higher, you can be charged regardless of how you appear or if you show any signs of impairment. This type of DWI charge relies solely on the BAC reading, not on behavior or performance on field sobriety tests.
Common Law DWI, covered under VTL § 1192(3), focuses on your actual level of impairment. You can be charged with DWI even if your BAC is below 0.08%. For instance, someone who registers a 0.07% BAC could still face a DWI charge if an officer observes signs of intoxication, such as slurred speech, poor coordination, or the smell of alcohol. In this case, the arrest is based on observed behavior and field sobriety test results, not just chemical evidence.
Understanding these distinctions is crucial for anyone facing DWI charges, as the strategy for defending each type of charge differs significantly. A New York DWI lawyer can analyze which type of charge you’re facing and build a strong defense tailored to the specific evidence being used against you. Contact The Kugel Law Firm today to schedule a consultation.
How Does NY VTL § 1192.2 Differ From Other DWI Statutes?
The main difference between NY VTL § 1192.2 and other DWI statutes is that § 1192.2 penalizes driving with a blood alcohol concentration (BAC) of 0.08% or higher, regardless of observable impairment. Other DWI laws may require proof of actual impaired driving behavior, making § 1192.2 a “per se” DWI statute.
Get Experienced and Quality Representation Today
Facing a DWI per se charge under NY VTL § 1192.2 can have severe consequences, including hefty fines, license suspension, and possibly even incarceration. These penalties not only affect your current daily life but can also have long-lasting impacts on your future opportunities and mobility. At The Kugel Law Firm, we understand the gravity of these charges and are dedicated to offering robust legal representation to minimize these potential consequences.
Call us at (212) 372-7218 for a consultation and take the first step towards safeguarding your future.
