Driving While Intoxicated Per Se
Vehicle & Traffic Law 1192(2)
Under the New York State law, no person shall operate a motor while such person has a blood alcohol content of .08 or greater as shown by chemical analysis of such person’s blood, breath, urine, or saliva. If the defendant has been convicted of a crime in violation of Vehicle and Traffic Law Section 1192(2), 1192(2-a), 1192(3), 1192(4), 1192(4-a) or in violation of Penal Law Section 120.03, 120.04, 125.13, or 125.14 within the previous ten years, a conviction of driving while intoxicated per se is a class E felony. If the defendant has been convicted of a crime in violation of any of the previously listed crimes twice in the previous ten years, a conviction of driving while intoxicated per se is a class D felony.
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.
The device used to measure blood alcohol content as well as the following must be considered when determining the accuracy of the results of a chemical test: (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.
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.
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 blood alcohol content was .08 as shown by a chemical analysis of such person’s blood, breath, urine, or saliva.
For more information on Driving While Intoxicated Per Se, 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.