Can You Blow Below the Legal Limit and Be Charged with a NY DWI: BAC Levels and Criminal Complaints

Its widely known by New York DWI lawyers, prosecutors, judges and regular every day people that the legal limit for a BAC in a drunk driving, DWI or DUI case is .08. If your BAC is.08 or greater, regardless of where you may reside in New York from the City to the suburbs, you will be charged with violating New York Vehicle and Traffic Law 1192.2. Unlike the common law variety of New York Vehicle and Traffic Law 1192.3 that relies on certain indicia of intoxication (water blood shot eyes, slurred speech, unsteady gate), VTL 1192.2 relies solely on scientific reading from DWI equipment such as an intoxilyzer. The question posed in this particular NY DWI blog entry is if you in fact blow below a .08 can you still be charged with DUI or DWI based on a VTL 1192.3 Offense. That is, even if scientifically your are well below the legal threshold, can the police still arrest and prosecutors still charge you a DWI misdemeanor?

In People v. Pasquazi, 2014NY089232, NYLJ 1202736928267, at *1 (Crim., NY, Decided August 25, 2015), the police arrested the defendant in New York County (Manhattan) and prosecutors with the Manhattan District Attorney’s Office charged him with violating VTL 1192.3, misdemeanor DWI, and VTL 1192.1, non-criminal DWAI. The complaint was fairly straight forward and accused the defendant of having the tell tale signs of intoxication. That is the watery and bloodshot eyes, unsteady feet and the smell of alcohol on his breath. Remember, to be accused or convicted of VTL 1192.3, unlike VTL 1192.2, there need not be a BAC reading or test of .08 or greater. Here, the DWI attorney argued that the supporting documents, taken into consideration with the information presented, in fact made out that the accused was not intoxicated. More specifically, according to the decision, “the supporting deposition of Officer Moix [the arresting officer] states that the defendant had .05 percent by weight of alcohol in his blood and the IDTU Technician Test Report of Officer Moix noted that the defendant’s speech was clear, balance was steady, finger to nose test was accurate, and further indicted that ‘Deft not DWI or impaired.'” As such, the attorney argued, “the accusatory instrument is insufficient to overcome the statutory presumption that the defendant was not impaired or intoxicated.”

While the defense above is one that may ultimately be on that is successful at trial (there is a higher standard and a court or jury is not merely bound by the four corners of the complaint paperwork), the Court disagreed with the defendant’s counsel. In denying the defendant’s motion to dismiss, the Court stated:

“The defendant’s contention that the accusatory instrument fails to rebut the statutory presumption is misguided. The facial sufficiency requirement does not mandate that the information establish the defendant’s guilt beyond a reasonable doubt (People v. Jennings, 69 NY2d 103, 115 [1986]. The evidence in the DWI paperwork that the defendant had .05 of one per centum by weight of alcohol in his blood is prima facie evidence that he was not in an intoxicated condition or impaired by the consumption of alcohol (VTL §1195.2(a); People v. Lawrence, 53 AD2d 705 [3rd Dept 1976]), where the Court held that breath test results of .05 of one per centum by weight of alcohol in the blood is ‘merely prima facie evidence that a defendant’s ability was not impaired and he was not intoxicated.’ That creates a presumption that the People are entitled to rebut at trial (People v. Blair, 98 NY2d 722, 723-724 [2002]; People v. Santos, 43 Misc 3d 136(A) [2014]). The presumption is not one which the accusatory instrument must overcome insofar as the People’s prima facie burden ‘is not proof beyond a reasonable doubt required at trial, nor is it the legally sufficient evidence required to overcome a motion to dismiss based upon the proof at trial (People v. Kalin, 12 NY3d 225, 230 [2009]).”

To learn more about New York DWI crimes including VTL 1192 misdemeanors and felonies, DWI, DWAI and Leandra’s Law, please review other entries found in the DWI section of this blog, the Crotty Saland website and the links located above and below.

Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors who served in the DWI Unit. The New York DWI lawyers and criminal defense attorneys at Crotty Saland PC represent clients throughout the New York City an suburban region.

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