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Do Laws In New York Address BAC Levels Below 0.08?


You should not be arrested if you have a blood alcohol reading between 0.00 to 0.04; in that case it would not be illegal to drive and it would not be a crime, In fact it would not even be considered an infraction of driving while ability impaired. Driving while ability impaired would mean your blood alcohol level ranged between 0.05 to 0.07, which would be a violation and a traffic infraction.

Your Own Admission To Drinking Can Give The Officer A Reason To Arrest You

Police officers often believe a person is impaired if they make an admission that they had been drinking. They then will place the person under arrest, even though they maybe had a very low reading on the initial Breathalyzer or Alco-Sensor when they were pulled over.

The police officer can place the person under arrest for a common law DWI, driving while ability impaired, for appearing to be intoxicated under the common law signs of bloodshot eyes, smell of alcohol, admission of consuming alcohol, stumbling, falling all over the place or messy clothes.

Police Officers Generally Do Not Risk Letting People Go If They Might Even Be Slightly Intoxicated

The officer can and would often still place you under arrest with a reading below the legal limit because they do not want to make a mistake by letting you go. Even though you may have only had a couple of drinks, your blood alcohol level may be on the rise. Secondly, if you got into an accident or hurt somebody, then it would be likely for that police officer to end up losing their job.

This is why police officers tend to err on the side of caution and it is often why they place people under arrest regardless. If your reading was still low when you got to the precinct and made the video, then the police officer would often ask you to take a urine test because although you had an overly low reading, you still appeared intoxicated to the officer.

The officer may reach the conclusion that the intoxication was probably due to the influence of drugs. This would come with its own issues because a lot of my clients tend to get pulled over with a very low reading, and then the officer wants to substantiate the arrest and may ask them to take a urine test at the precinct.

Lebedin Kofman LLP

Russ Kofman is a founding partner in Lebedin Kofman LLP. He has extensive litigation experience defending clients accused of felonies, misdemeanors and DWI/ DUI crimes.

Marijuana Would Stay In Your System Even After You Smoked It, Which Is Why Some People Refuse The Tests Just Out Of Fear

People generally have the idea that even though they have not consumed drugs or smoked marijuana, the marijuana will stay in their system for over two weeks and sometimes even a month. They then will often refuse the test because they are expecting it to show a positive result.

If they did not smoke marijuana that day, but may have had one or two drinks so they were not intoxicated or impaired, they would end up with a full-blown misdemeanor case where they would be charged with refusing to take a test. They generally end up with their license suspended at the arraignment and they will have misdemeanor charges.

The most important thing is to never make any admissions whatsoever about doing drugs or drinking alcohol to a police officer. You should always attempt to ask for your attorney from the very beginning.

Always Ask To Speak To Your Attorney

You should even ask for your attorney afterwards when you are on the video in the precinct. You should clearly tell the officer that you need to get your attorney on the phone and that you do not want to take any tests or answer any questions without your attorney present.

You should tell the officer that you have specifically been advised on numerous occasions regarding this, and you can request the officer to try to get your attorney on the phone. I have personally won a lot of cases where people specifically asked for their attorney and refused all tests so we were able to leverage the way they looked on the video.

We were able to argue that our client was not impaired or intoxicated because they were within their wherewithal to ask for an attorney, which proved that their mind was working, they were clear. They looked okay and they were not taking any tests which meant they were not giving the officers any opportunities to say they did something incorrectly.

We argued that our client made the kind of smart decisions that could be expected from somebody who had never been arrested before. They were scared and they said they did not want to do anything without a lawyer because they had no idea what would happen in this process.

If the police officer asks you to take the tests and you keep saying you want to talk to your lawyer, then the officer will specifically have to advise you that you are were not saying yes or no; you were just saying you wanted to talk to your attorney so at that point he would decide to mark that as a refusal.

I have won multiple cases on this point, refusal hearings as well as criminal court hearings, where the arrest and the refusal were suppressed because the officer did not clarify the conditions of the refusal. They did not have a good understanding or proper understanding of all the nuanced things they had to do; they did not have enough time, it was late, they forgot or whatever reason they had.

The police will often say that someone who blew below a 0.08 was common law intoxicated or they may try to find a reason to arrest you so they could give you a urine test to see if any drugs comes up in your system.

As far as commercial drivers are concerned, any plea for a commercial driver will result in an 18-month driver’s license revocation. There are similar issues with underage drivers because there is a zero tolerance policy for anyone arrested as an underage driver, so they are arrested right away. Anything any plea, even DWAI, will result in a one-year revocation and their license will either be revoked for one year or until they reach the age of 21, whichever was longer.

For more information on How New York Treats Low Blood Alcohol Levels, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (212) 500-3273 today.

Lebedin Kofman LLP

Russ Kofman is a founding partner in Lebedin Kofman LLP. He has extensive litigation experience defending clients accused of felonies, misdemeanors and DWI/ DUI crimes.

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