Driving While Ability Impaired By Alcohol
Vehicle & Traffic Law 1192(1)
Under New York State law, no person shall operate a motor vehicle while impaired by the consumption of alcohol. As determined by this statute, a person’s ability to operate a motor vehicle is impaired by the consumption of alcohol when that person’s consumption of alcohol has actually affected, to any extent, the physical and mental abilities which a person is expected to have as a reasonable and prudent driver.
A motor vehicle as defined by this statute means every vehicle operated or driven upon a public highway which is propelled by any power other than muscular power. A person operates a motor vehicle by driving it or when he or she is sitting behind the wheel of a motor vehicle for the purpose of placing the vehicle in motion. A person may be considered to be operating a vehicle even if the vehicle is not moving but the engine is running.
Determining whether a person is impaired is not dependent upon any particular chemical or physical test. Instead, to determine whether the defendant’s ability to operate a motor vehicle was impaired, all surrounding facts and circumstances must be considered. This includes the following: (1) the defendant’s physical condition and appearance, balance and coordination, and manner of speech; (2) the presence or absence of an odor of alcohol; (3) the manner in which the defendant operated the motor vehicle; (4) testimony regarding the defendant’s sobriety; (5) circumstances of an accident; and (6) the results of any test of blood-alcohol content of the defendant’s blood. The legal limit for the presence of alcohol in the defendant’s blood is .08. However, defendant will be considered to be impaired if the evidence of a chemical test of breath, blood, urine or saliva if there was .07 or more alcohol in the defendant’s blood.
The accuracy of the chemical test must be considered. To determine the accuracy of these tests the following must be considered: (1) the qualifications and reliability of the person who gave the test; (2) the lapse of time between the operation of the motor vehicle and the giving of the test; (3) whether the device used was in good working order at the time the test was administered; and (4) whether the test was given properly. Evidence that the test was administered by a professional possessing a valid New York State Department of Health permit allows for the presumption that the test was done properly. Additionally, if the defendant was clearly informed of the consequences of refusing to submit to a chemical test and chooses to refuse the test, it may be presumed that he or she refused because he or she feared that the test would disclose evidence of the presence of alcohol in violation of the law.
To find a defendant guilty of Driving While Impaired by Alcohol, the prosecution must be able to prove beyond a reasonable doubt two elements: (1) that on the alleged date, the defendant operated a motor vehicle; and (2) the defendant operated the motor vehicle while his or her ability to operate that motor vehicle was impaired by the consumption of alcohol.
For more information on Driving While Ability Impaired By Alcohol, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (212) 500-3273 today.
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.