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NY “Per Se” DWI with a .08 BAC or Higher: VTL 1192(2)

VTL 1192(2), the per se drunk driving statute in NYS, criminalizes driving while intoxicated whether you are arrested in New York City or the surrounding counties of Rockland, Putnam, Dutchess or Westchester. More specifically, DUI attorneys represent clients charged with this particular subsection where their clients have at least .08 of one percent of alcohol in their blood system as determined through a chemical test. Similar to VTL 1192(3), aka, “Common Law” or “Refusal” DWI, the glaring differences between these two offenses not only involve the .08 BAC level, but certain legal presumptions and licensing issues with the Department of Motor Vehicles (DMV). Irrespective of whether your DWI lawyer is fighting one or both of these charges after you were arrested on Manhattan’s FDR Drive or Westside Highway, Westchester or Putnam’s Taconic State Parkway, or the Bronx River Parkway passing through White Plains or Scarsdale, the ramifications – from potential sentences to collateral impacts – are grave.

Criminal Elements

Although the statute is titled “Driving While Intoxicated,” the Vehicle and Traffic Law does not require that you drive your car as a perquisite for an arrest. Nor, does the law mandate the vehicle is a car. Instead, DWAI, DUI or DWI crimes in New York merely require that you operate a motor vehicle on a public highway. It can be a Grand Cherokee, Harley Davidson, an 18 wheeler, or even a conversion van as long as the key is in the ignition and the car is on a public highway. This even includes a parking lot or private road accessible to vehicular traffic.

Assuming your actions fall within the purview of the above guidelines and as a result of a breathalyzer, intoxilyzer, or alcosensor test administered by the NYPD, NYS Police or other local police you blow a .08 or higher, you are guilty of VTL 1192.2. Of course, the District Attorney must prove these elements beyond a reasonable doubt. If your BAC is .18 or greater, then what was “only” bad will become far worse. While your arrest will remain a misdemeanor, the DA will elevate the charge to an Aggravated DWI pursuant to VTL 1192.2(2-a).

Penalties and Punishment

For many, a conviction by itself is punishment enough. However, the criminal justice system packs a far more powerful punch. Incarceration. Probation. Fines. License revocation. In no particular order, the following are some of the penalties:

  • Jail up to one year
  • Probation up to three years
  • Community service
  • License revocation for six months - you may be eligible for a conditional license
  • A fine between $500 to $1,000
  • Impaired Driver Program (IDP)
  • Three year driver responsibility assessment of $250
  • Victim Impact Panel
  • Vehicle interlock device
  • Increased car insurance

While not a penalty in the same context as the above sentences, the NYPD, State Police, County Police or other law enforcement agency may seek forfeiture of your vehicle.

Your Case, Your Defense, Your Future

Don’t merely assume because you blew above a .08 that you will find leave the courtroom with a criminal record. Even if you are temporarily without a license, you can potentially secure a conditional one at Hardship Hearing should your attorney ask for such a hearing and argue successfully on your behalf. If you arm yourself with the right defense and take the time to analyze the evidence in your case, you might be able to avail yourself to a non-criminal VTL 1192(1), Driving While Ability Impaired or DWAI. Even better, who is to say you can’t have your case dismissed? Why did the police stop your vehicle and what was the probable cause? Was there a legally administered check point? Were you doing the right thing by sleeping in your car even if it was running to keep you warm? Is the portable breath test – PBT – admissible at trial? Was the intoxilyzer or similar device properly working and certified? Does the police paperwork or video corroborate or is it inconsistent with the allegations? Were you mirandized before you made any alleged statement?

Ultimately, it is your life, your career, your record. You need to seize control and put yourself in the best place to minimize your exposure no matter the potential penalty or punishment. Do not let an arrest cripple your future – hire the drunk driving defense attorneys and former DWI prosecutors at Crotty Saland PC so advocacy, knowledge and experience is your way home.

Call the New York drunk driving defense attorneys and former Manhattan prosecutors at (212) 312-7129 or contact us online today.

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Let me start by saying how amazing Liz Crotty is! I am a resident of California, who needed representation for my son who received a desk citation while he was visiting NYC. Liz jumped on the case right away; she was very thorough in explaining things to me. She is strictly business too! She went to court on my son's behalf and had his case dismissed. I am forever grateful to her. Seana G.
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