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 screening.
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.
