New York DWI & VTL 1192 Arrests: Can You be Arrested and Prosecuted for a BAC Reading Well Below .08

When arrested for drunk driving in New York City or New York State (some attorneys and non-lawyers alike call this crime DWI or DUI), there are certain elements for each of the two major DWI crimes that transcend every case. That is, for example, if you “blow” a .08 or above in terms of your BAC, the police will arrest you for the per se Vehicle and Traffic Law offense of VTL 1192.2, Driving While Intoxicated. Even if you do refuse to blow, you are not home free. Not only will your refusal result in a separate Department of Motor Vehicle (DMV) proceeding for the revocation of your license, but the police and the local District Attorney can still charge you with DWI or DUI pursuant to VTL 1192.3. This “non blow” version of DWI is no different than VTL 1192.2. The potential outcome is the same, but prosecutors must ultimately prove beyond a reasonable doubt that you were operating a motor vehicle while intoxicated through the eyes of the arresting officer (and other witnesses). In such cases the officer would testify about the smell of alcohol on your breath, your watery and blood shot eyes, your gate and demeanor, and other relevant factors. In New York City (Manhattan, Brooklyn, Bronx and Queens), the NYPD video tapes you at the precinct while conducting certain mobility tests. For better or worse, the municipalities in the suburbs of Rockland and Westchester Counties do not.

Without further addressing these crimes (materials on these offenses are found on the Saland Law PC website’s DWI section and throughout the NewYorkCriminalLawyerBlog.Com), what happens if you do decide to blow and take a PBT (portable breath test) at the scene of your arrest and the BAC reading is well below .08 (arguably, if it is low enough there may be no probable cause for your arrest)? What if back at the precinct you blow on the intoxilizer with a reading again below .08? How can prosecutors prove their case beyond a reasonable doubt? For starters, as noted above, the police can testify as to your traits or characteristics when attempting to establish a DWI or DUI crime even if you did not provide a BAC sample. They can do the same here. However, there are certain presumptions in the law that could potentially be favorable (or unfavorable) to you. These presumptions are found in VTL 1195.

According to VTL 1195(2)(a), if your BAC (I should have mentioned this earlier, but “BAC” stands for blood-alcohol content) registers at .05 of one per centum or les, it is prima facie evidence that you were neither impaired as a result of alcohol consumption nor intoxicated. “Prima facie” evidence is the basic level of evidence that prosecutors must establish (prior to your DWI attorney or New York criminal lawyer challenging or rebutting that evidence) for a case to proceed ultimately through trial to a potential conviction. Failure to establish or present prima facie evidence would result in the closure or dismissal of a case.

VTL 1195(2)(b) slightly, but significantly, changes the presumption. Evidence that you had a BAC in excess of .05, but less than .07, is prima facie evidence that you were not intoxicated. However, it will be relevant evidence in determining whether you were impaired to operate a motor vehicle and guilty of the lesser offense of VTL 1192.1 (VTL 1192.2 and VTL 1192.3 are New York’s DWI crimes, while VTL 1192.1 is the violation of Driving While Ability Impaired or DWAI).

Lastly, VTL 1195(2)(c) states that where you have a BAC of .07 or more, but less than the per se .08, it is prima facie evidence that you were not intoxicated (again, .08 is the threshold for the DWI crime), but also prima facie evidence that you were impaired and potentially guilty of DWAI, VTL 1192.1.

New York DWI, DUI and DWAI presumptions are critical to understand. They can certainly have a direct impact on how your case is resolved. To ignore these presumptions could mean facing up to a year in jail, a $1,000 fine and and loss of your license for three, six or twelve months. Remember, VTL 1192.3 is a criminal offense that prosecutors can pursue whether or not you refused to provide a BAC reading. You can still exhibit the common law signs of intoxication with or without this BAC sample. However, should you provide a BAC sample, VTL 1195 can be either a sword or a shield in your defense.

To read about New York DWI laws and DUI crimes from Hardship Hearings and Refusal Hearings to legal decisions defining New York DWI laws and the statutes themselves, review this blog and the Saland Law PC website.

Saland Law PC is a New York criminal defense firm founded by former Manhattan prosecutors who served in the DWI Unit of the New York County District Attorney’s Office.  Saland Law PC’s New York DWI lawyers represent clients in all DWI related crimes throughout New York City as well as the suburban municipalities of the lower Hudson Valley in both Westchester and Rockland Counties.

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