DWI and DUI

Driving Under the Influence of Alcohol has an incredible stigma attached to it. The police, prosecutors, judges, and society in general has zero tolerance for drinking and driving. Worse, allegations of drunk driving can turn a good person of upstanding moral character into a common critical. It is absolutely critical that if you find yourself under arrest for a drunk driving allegation, you contact an experienced New York City DWI lawyer immediately.

Under New York law, Driving Under the Influence or "DUI" is called "Driving While Intoxicated." It is a crime that the legislature, the police, and the District Attorney’s Office all take very seriously. Many upstanding and productive members of our society find themselves in situations where they are accused of being drunk drivers, even in situations where they weren't actually drunk. Indeed, being accused of drunk driving is the single biggest circumstance in which a law-abiding individual may find him or herself under arrest and in need of a good lawyer.

There are many complexities involved with proving that the driver was actually “drunk” when they were driving and a good attorney could be the difference being thrown in jail and being vindicated from this awful stigma. John Buza is an experienced New York attorney who has handled drunk driving cases both as Manhattan prosecutor and as a private defense attorney. If you or a loved one is accused of any of the subsections of drinking while intoxicated, do not hesitate to contact him today.

In New York, prohibitions against drinking and driving are codified in section 1192 of the New York Vehicle and Traffic Law. There are several subsections of 1192 that govern situations in which a person who is accused of consuming an intoxicating substance and drives may be charged. When a person is accused of drunk driving, he is typically charged with violating multiple subsections. These subsections are individually listed below along with what the government needs to prove to sustain a conviction and what the sanctions are for being convicted.

  • 1192.2

Driving While Intoxicated "Per Se" is codified in section 1192.2 of the New York Vehicle and Traffic Law. VTL 1192.2 makes it a crime punishable by up to a year in jail to operate a motor vehicle while the operator's blood alcohol level (BAC) is .08 or higher. The term operate has a unique legal definition. This definition is more expansive than what most people would consider “driving” to mean. As far as the police are concerned, if a person is sitting behind the wheel of a car, the keys are in the ignition, and the engine is turned on, they will perceive the person as “operating” that vehicle. And if they think the person is “operating” the vehicle while in an intoxicated state, they are going to arrest the person.

For the government to prevail in sustaining a conviction for violating VTL 1192.2, they are going to need to prove the following two elements beyond a reasonable doubt. They are going to need to prove that:

  1. the person operated a motor vehicle; and
  2. the person did so when he had .08 of one per centum or more by weight of alcohol in his blood.

The important thing to remember with this charge is that it does not matter whether the person appears intoxicated, whether they feel like they are “good to drive,” whether the person objectively is “good to drive,” or whether anyone can even tell the person is intoxicated. In New York, it is a crime to drive with a blood alcohol level of .08 or higher. It makes no difference whether the person's ability to drive is actually affected by the blood alcohol level.

So how does the government prove that the person is driving with a blood alcohol content of .08 or higher? Well, typically what happens is a person is pulled over by police officer for a random reason. Suppose in this instance its for speeding. Then when the police officer comes to the car window to ask for the driver's license, registration, and insurance card, he smells a faint odor of alcohol on the person’s breath and sees that the person’s face is flushed and his speech is slightly slurred. Based on these facts, the officer now has a sinking suspicion that the driver is intoxicated. The officer likely will then ask the driver to step out of the vehicle. Afterwards, the officer may conduct additional tests to help the officer determine whether the person is intoxicated. Depending on how the driver does on those tests, he may or may not be placed under arrest.

If the driver is placed under arrest, the officer then will take the driver to one of several designated precincts that has a breath test. The breath test used in New York is called the “Intoxilyzer 5000.” This Intoxilyzer is purported to give an accurate reading as to what the person’s blood alcohol level is by using a special kind of laser to measure the particles in the person’s breath. It then converts the reading of these specific particles into a reading of what the driver’s blood alcohol content is. If the person then blows a .04, he is released and goes on his way thankful that he is not legally considered intoxicated. If a person blows a .08 or higher, then he will be formally charged by the police and the District Attorney’s Office and will be taken to central booking. There is a legal presumption that a jury may infer that the person's blood alcohol level when he was actually driving was the same as when he blew into the Intoxilyzer. The point of emphasis here is that the driver’s actual driving or state of intoxication does not matter for this charge. The officer will then ask the person to submit to certain coordination tests which are then done on video. If a person is arrested for drunk driving, they are almost always charged with 1192.3 and 1192.1 in conjunction with the 1192.2 charge.

  • 1192.3

Driving While Intoxicated is codified in New York Vehicle and Traffic Law Section 1192.3. VTL 1192.3 makes it a crime punishable by up to a year in jail to operate a motor vehicle while in an "intoxicated condition." The term operate has a unique legal definition. This definition is more expansive than what most people would consider “driving” to mean. As far as the police are concerned, if a person is sitting behind the wheel of a car, the keys are in the ignition, and the engine is turned on, they will perceive the person as “operating” that vehicle. And if they think the person is “operating” the vehicle while in an intoxicated state, they are going to arrest the person.

For the government to sustain a conviction under VTL 1192.3, they need to prove the following two elements beyond a reasonable doubt. They need to prove that:

  1. the person operated a motor vehicle; and
  2. the person while in an intoxicated condition.

A person is legally considered to be in an intoxicated condition when such person has consumed alcohol to the extent that he is incapable, to a substantial extent, of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver.

To be convicted under this charge, the government need not prove that the person's blood alcohol level was at a certain level. Theoretically, a person could be guilty of driving while intoxicated even if they only had one drink. What matters here is whether the person was in an "intoxicated state." If a person has a blood alcohol level of .08 or higher, they will be charged under 1192.2 in addition to this charge. Most times, these charges are brought in conjunction.

So how does the government prove that a person drove in an intoxicated state? Well, typically what happens is a person is pulled over by police officer for a random reason. Then, if the officer suspects that the person had been drinking, he will look for signs of intoxicated. Signs like the driver having slurred speech, having a flushed face, and having the odor of alcohol emanating from the driver's breath all will lead the officer to conclude that the driver may be intoxicated. The officer may conduct additional tests to help the officer determine whether the person is intoxicated. Depending on how the driver does on those tests, he may or may placed under arrest for suspicion of drunk driving.

If the driver is placed under arrest, the officer then will take the driver to one of several designated precincts that has a breath test. As mentioned earlier, the results of the breath test are not that relevant for this particular charge. What matters here is whether the person drove in an "intoxicated condition." Usually, there are two ways to be charged with this crime. One is to blow into the breath test and fail it. If that happens, these charges will be added to the 1192.2 charge for blowing a .08 or higher. The other way to be charged is to refuse to take the breath test. If that happens, the driver is not charged with the 1192.2, but will likely be charged with 1192.3

So how does the government prove that the driver drove in an intoxicated condition? Usually by calling at trial the officers who would testify to their observations of the driver on the night in question. If the officer testifies to facts like the driver was unable to maintain his lane or was driving with the headlights off even though it was at night, that may tend to support the argument that the person’s ability to drive was substantially impaired by alcohol. Moreover, after a person is arrested for suspicion of drunk driving, the officer will likely give the driver several coordination tests. These coordination tests are filmed and then shown to the jury. If a person does poorly on those tests, the performance may be used against the person to imply to the jury that the person’s ability to drive was substantially impaired by alcohol.

  • 1192.1

Driving While Ability Impaired by Alcohol is codified in New York Vehicle and Traffic Law 1192.1.

VTL 1192.1 is a driving infraction that makes it a violation punishable by up to 15 days in jail to operate a motor vehicle on a public highway while the operator’s ability is impaired to any extent. This charge is not classified as a crime. Even though this charge is not a crime, there are a lot of collateral consequences that people who are convicted of this crime need to consider. Some of these consequences are suspension of their license as well as the possibility that the driver may have to pay a significantly higher insurance rate.

For the government to sustain a conviction under 1192.1, the need to prove the following two elements beyond a reasonable doubt. They need to prove that:

  1. the person operated a motor vehicle; and
  2. the person's ability to do so was impaired by the consumption of alcohol.

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 impaired, to any extent, the physical and mental abilities which such person is expected to possess in order to operate a vehicle as a reasonable and prudent driver. To be convicted under this count, the government need prove that the person blew a certain number in a breath test or that he was actually "intoxicated." The government need only prove that the person drank alcohol and his ability to drive was impaired by that alcohol "to any extent."

  • 1192.4

Driving While Ability Impaired by Drugs is codified in New York Vehicle and Traffic Law 1192.4. Under this subsection, it is punishable by up to one year in jail to operate a motor vehicle on a public highway while the person’s ability to do so is impaired by drugs.

For the government to sustain a conviction against a person under 1192.4, it needs to prove the following two elements beyond a reasonable doubt. It needs to prove that:

  1. the person operated a motor vehicle; and
  2. the person's ability to do so was impaired by the use of a drug.

So if a person is high on marijuana, cocaine, or some other illicit substance, and that person’s ability to drive is impaired by that high, then the person is guilty of this subsection. Just like with sections 1192.1, the standard is “impaired to any extent.” However, whereas 1192.1 is only a violation punishable by up to 15 days in jail, the fact that it’s a drug that is influencing the person's ability to drive and not alcohol, it bumps it up to a crime with more severe sanctions.

John Buza is an experienced New York criminal defense attorney who is a former Manhattan prosecutor. If you, or a loved one, is accused of any subsection of the DWI law, contact him today for a free consultation.