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January 26, 2015 | Dominique A. Penson

You already know that driving while intoxicated can have devastating consequences.  The legal troubles you heap upon yourself may be the least of it.  By planning ahead, you can avoid putting yourself and others in a dangerous position.  There’s never an excuse for getting behind the wheel if you aren’t fit to drive.   Attorney Bruce Kaye of our criminal division, a former Assistant District Attorney, answers some of the most frequently asked questions about alcohol-related offenses.

What is the difference between Driving While Intoxicated and Driving While Impaired?

Like all states, New York prohibits anyone from operating a motor vehicle while under the influence of alcohol, marijuana, other drugs, or a combination of substances.  It divides such offenses into different categories.

The law does not require any particular chemical or physical test to prove that a driver was intoxicated.  Blood Alcohol Concentration (“BAC”) is one way to prove that a driver was intoxicated, but it is not the only way.  Other factors that may be used to prove that a driver was intoxicated include the driver’s physical condition, appearance, balance, coordination, and manner of speech, an odor of alcohol, an open container in the vehicle, opinion testimony from witnesses, and the circumstances of any accident.

If a driver’s blood alcohol concentration (“BAC”) is .08% or higher, there is a rebuttable presumption that he was Driving While Intoxicated.  A BAC between .05% and .07% will be relevant evidence in determining whether the driver was Driving While Impaired.

When drugs are involved, however, New York has not specified minimum levels that establish impairment per se.  Having any amount of a drug in your blood or urine, coupled with evidence of impairment, is sufficient to establish that the driver was under the influence.

What are the penalties for Driving While Intoxicated and Driving While Impaired?

Driving While Intoxicated is a misdemeanor.  This means that a conviction will result in a criminal record and will expose the driver to harsher penalties for second offenses.

The penalties for both offenses are serious, and may include jail time and license suspension.  A driver convicted of Driving While Intoxicated faces a sentence of up to one year in jail or three years’ probation, mandatory revocation of driving privileges for 6 months, and the installation and maintenance of an ignition interlock device in any car owned or operated by the defendant.  Mandatory fines range from $500 to $1000.

Driving While Impaired is a traffic infraction.  It is not a crime, and will not result in a criminal record; however, a driver convicted of Driving While Impaired faces a maximum jail term of 15 days and a mandatory license revocation for 90 days.  Mandatory fines range from $300 to $500.

What are the consequences of refusing the chemical test?

When a driver is suspected of driving while intoxicated, the officer will routinely administer a  preliminary breath test.  This is a roadside test in which the driver is asked to blow into a plastic tube attached to a hand held device.  Historically, these test results have been considered unreliable and thus inadmissible at trial, but there is now a trend within the court system toward allowing them as evidence of intoxication.  They are primarily used to establish probable cause for the DWI arrest and the officer’s subsequent request to have the driver submit to chemical breath testing.  Refusal to take the preliminary breath test is a traffic infraction.

Chemical testing may consist of either blood or urine analysis or having the driver blow a sample of air into a chemical test machine in order to determine the driver’s “BAC.”  The NYPD routinely takes video footage of the officers’ requests to administer the chemical test at a precinct, within two hours of the arrest.

A driver who refuses to take the chemical test will have his license revoked automatically for one year (second and subsequent offenses – eighteen months).  Moreover, evidence of the refusal will be admissible at trial, so long as the person was warned of the consequences of refusing.  In the absence of a compelling reason to refuse the test, this can be very damaging evidence.

Should I agree to take the chemical test?

On one hand, declining the test means that the prosecution will not have a test result for you.  The prosecution’s  case will be based upon the observations of the officer, the videotape, and the presumption created by the refusal.  On the other hand, the penalties for refusal are stiff, and although most chemical test instruments give a reliable measurement, they are not incontrovertible.  Moreover, most District Attorney’s offices have a policy of refusing to offer a plea to the lesser offense of Driving While Impaired to drivers who have refused the test.

Most people need approximately one hour to metabolize one alcoholic beverage.  Other factors such as the type of drink, gender, weight, whether the person has eaten, and whether the person has taken medication can affect BAC.  If you are certain that your score is under .05%, you should take the test.

If you are uncertain whether to take or refuse the test, you should ask for an opportunity to call your attorney.  Inform the arresting officer that you are not refusing the test, just requesting advice from your attorney.  Police are required to make a reasonable effort to contact your attorney at a number that you provide, as long as it does not interfere with the administration of the chemical breath test within two hours of arrest.  Most arresting officers will accommodate the request.  Those that do not will consider the request a refusal, but, under some circumstances, the disallowance may provide an explanation for declining the test.

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