DWI / DUI in New York
Published by Thomas A. Tormey, Jr., July 30, 2020.
If this is your first offense or if you are a repeat offender, whether you are charged with a misdemeanor or a felony, Tom Tormey has the experience, the dedication and the willingness to fight for you, your rights and your liberty.
It is Not Against the Law to Drink and Drive in New York - But …
If a person is over the age of 21, it is not illegal to drink and drive in New York, provided your Blood Alcohol Content (BAC) is less than 0.05 of 1% and provided you are not impaired or intoxicated because of your consumption of alcohol. This is what the highest court in New York State, the N.Y. Court of Appeals said in the case of People v. Cruz, 48 N.Y. 2d 419, at page 426.
But, and this is important, if your drinking pushes your BAC up over 0.05, or if your drinking causes you to become impaired or intoxicated, then you can be arrested and possibly convicted of a DWI offense.
And what is even more important to know is that, even if your BAC is under 0.05, you might still be arrested and charged if the arresting officer determines, IN HIS or HER OPINION, that you were intoxicated or impaired. Yes, that’s right. You may pass the Breath-Blood-Alcohol test and still be arrested based on the opinion of the arresting officer. This is explained more below when we discuss the DWI laws.
Is there a Difference Between DUI or DWI
In many parts of the country, people are familiar with the term, DUI or Driving Under the Influence of Alcohol or Drugs. In New York, we call it DWI, Driving While Intoxicated. Whether you call it DUI or DWI, the charges are serious, and the law is complicated.
If you are charged with a DWI offense in New York, you need an attorney who is highly experienced in handling these types of cases. You also should have an attorney who can evaluate the case, tell you the best course of action and fight for you at trial, if necessary. Tom Tormey is a lawyer with all these characteristics.
You Can Be Arrested Even if You Were Not Seen Driving or Even if You Were Asleep in the Car
In New York, all of the laws that make it illegal to drive while impaired or intoxicated start the same way. They don’t say “No person shall drive a motor vehicle while [impaired, intoxicated.]
The laws all say “No person shall operate a motor vehicle while [impaired or intoxicated.].
So what does “operate a motor vehicle” mean? Well, that’s a good question.
In the case of People v. Salerno, 36 Misc. 3d 151 (2012) the court held that being asleep in the driver’s seat of a vehicle while the engine is running constitutes operation of a motor vehicle absent evidence that the engine was running for some reason such as using the vehicle’s heater.
On top of that, the courts have held that the police do not have to observe you operating the vehicle. They may be able to prove that you operated the car using circumstantial evidence.
This means that you need a lawyer who has the knowledge of the law, experience with a wide range of cases and the ability to help you fight the charges if you were charged with operating the vehicle.
The Law in New York applicable to DWI
When a person in New York is arrested for a DWI or a DUI, there are a lot of different charges they may face but the usual ones are Driving While Intoxicated (DWI) and Driving While Ability Impaired by Alcohol (DWAI).
If you or a family member are arrested for drinking and driving, the charges are set forth in Article 31 of the Vehicle and Traffic Law, often referred to as the VTL. The important sections of Article 31 that relate to DWI are VTL Sections 1192 to 1199.
Section 1192 of the VTL is titled “OPERATING A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL OR DRUGS.”
The relevant sub-sections of VTL Section 1192 are:
a) VTL Section 1192.1 – Driving While Ability Impaired (DWAI).
You are charged with this offense when your Blood Alcohol Content (BAC) is 0.05 – 0.07. An important thing to remember about this section is that this offense is NOT A CRIME. It is merely a TRAFFIC INFRACTION, also called a Violation. If you end up being convicted of only this offense, you can honestly and truthfully say you were not convicted of a crime. This is an important feature and is often the desired outcome of some DWI cases.
b) VTL Section 1192.2 – Driving While Intoxicated (DWI).
This is known as “DWI per se,” and you will be charged with this section when your Blood Alcohol Content (BAC) is 0.08 or above as proven by a blood test or a breathalyzer. DWI per se is a Misdemeanor. That means it’s a CRIME.
This section is charged only when you take the Chemical Breath test (sometimes known as the “Breathalyzer”) and the test results indicated that your BAC is over 0.08.
c) VTL Section 1192.3 – Driving While Intoxicated (DWI). This is also known as DWI, Common Law.”
It is important to note that there is no proof of a driver’s Blood Alcohol Content (BAC) is required in order to obtain a conviction.
It’s basically the police officer’s “opinion” as to whether or not the motorist was intoxicated and their opinion is usually based on the officers observations of signs of intoxication, such as the manner in which the vehicle is operated, the odor of alcohol on breath, bloodshot or watery eyes, flushed face, or being unsteady on their feet.
This section is used when the person “refuses” to take the Blood Alcohol test (“Breathalyzer”).
But, and this is important, it is almost always charged in every case, even where there is an actual reading of the person’s BAC.
Why?
So the prosecutor can have a backup-plan just in case there are any problems or issues with the Chemical Breath test, like whether the machine was properly calibrated, or whether the officer was properly trained to operate the machine, or whether the machine was functioning properly at the time the test was administered to the person in custody. Prosecutors also charge a defendant with this section so that they can have the arresting officer testify to his or her opinion about whether the operator of the vehicle was “intoxicated" or “impaired.”
In most cases, a person who is arrested for DWI is usually charged with at least 2 of the above offenses, and sometimes all 3.
Penalties
If you are unlucky enough to be arrested for a DWI, it is helpful to know the penalties associated with the charges that have been brought against you.
The VTL section that sets forth the penalties for violations of these laws is set forth in VTL 1193.
Importantly, all of the penalties carry with it fines and either a license suspension or a license revocation for different periods of time and it will stay on your record.
Like the laws mentioned above that describe the different counts you can be charged with, the laws setting forth the penalties are also complicated and confusing. You need a lawyer to help you navigate through his bewildering maze so that you know you are getting the best representation possible.
Conclusion
As you can see, there is a lot to DWI cases and there is a lot more than what has been written in this blog post. DWI cases are not simple cases. The law is complex and it is getting more complex every year.
If you or a loved one have been arrested for a DWI offense in New York, you need experienced legal counsel to see you through the entire process.
Tom Tormey has extensive experience in this area of the law and has handled many, many cases of drinking and driving.
To be sure you’re getting the best representation possible, call Tom Tormey now. The call is free, but talking to Mr. Tormey is worth a lot.
© Thomas A. Tormey, Jr.
