In New York State the Blood Alcohol Content (BAC) levels are very important
to defend a
Driving While Intoxicated(DWI) charge. Usually at arraignment on a DWI charge the accused will be
presented with a BAC test result that the prosecution intends to use as
evidence against the accused. In a New York DWI case the level has very
specific meaning under the Vehicle and Traffic Law. The best
criminal defense lawyers can explain what the levels are and how to attack the BAC test results.
In general the legal effect of a
BAC reading are as follows:
1. BAC of .02% to .07% by a driver under the age of 21 years will result
in a loss of a license. Zero Tolerance Law.
2. BAC of .05% or less is prima facie evidence that the accused was not
impaired or intoxicated. VTL 1195(2)
3. BAC of over .05% but less than .07% is prima facie evidence that the
accused was not intoxicated. It is relevant evidence but not prima facie
evidence of impairment. VTL 1195(2).
4. BAC of .07% or more but less than .08% is prima facie evidence the accused
is not intoxicated. VTL 1195(2).
5. BAC of .08% or more is per se Driving While Intoxicated (DWI). VTL 1195(2).
6. BAC of .15% or more or a refusal will require a mandatory drug and alcohol
7. BAC of .18% or more is aggravated driving while intoxicated. VTL 1192(4-a).
The charges based upon a BAC reading are as follows:
Driving While Ability Imparied DWAI - BAC .05% to .07%,
Driving While Intoxicated DWI - BAC .08% to .17%
Aggravated Driving While Intoxicated - BAC of .18% or more
It is important to understand the BAC levels as they have an impact on
the accused driver's license and type of charge to be imposed. In
addition the BAC levels have been unsaid by some District Attorney's
offices to analyze the case for dismissal, plea bargain, or trial.
In Orange County, Westchester County, Putnam County and Rockland County
very close attention is paid by the prosecution to the BAC results. Some
counties even use the test result as a bright line rule regarding the case.
The DWI defense starts with the BAC reading since most District Attorney
offices rely heavily on the results.