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New York Vehicle & Traffic Law § 1192(2) – Driving While Intoxicated, Per Se

Knowledgeable New York Criminal Defense Attorneys Aggressively Defending the Rights and Freedoms of Motorists Charged with DWI Offenses

Driving While Intoxicated, Per Se ("DWI per se") is a New York DUI law that prosecutors bring when someone operates a motor vehicle with a blood-alcohol content of .08 or more. DWI Per Se charges require the prosecution present chemical test evidence of a driver's blood, breath or urine. Driving While Intoxicated, Per Se is a misdemeanor. It is committed when operating a vehicle with a blood alcohol content of ,08 or above, whether or not the operator is legally intoxicated.

The Elements of Driving While Intoxicated, Per Se in New York

Before a judge or jury can convict anyone of a crime, the government must prove each element of the offense beyond a reasonable doubt. Driving While Intoxicated - Per Se is no exception. The elements of Driving While Intoxicated Per Se are:

  1. The defendant operated a motor vehicle; and
  2. At the time the defendant operated a motor vehicle, their blood-alcohol content was .08 or more.

Notably, the Driving While Intoxicated Per Se statute does not require the prosecution present evidence of dangerous driving. Thus, it is sufficient that the prosecution presents chemical test results suggesting that the driver's BAC was .08 or more.

Examples of Driving While Intoxicated, Per Se

Examples of Driving While Intoxicated - Per Se include:

  • A motorist was pulled over for a minor traffic infraction, but had a BAC of .09; and
  • A motorist was stopped at a DWI checkpoint and provided a sample indicating a blood-alcohol content of .10.
Related Offenses to NY Vehicle & Traffic Law § 1192(2)

Often, prosecutors bring Driving While Intoxicated, Per Se charges along with one or more of the following:

  • Driving While Ability Impaired by Alcohol – N.Y. VTL § 1192(1)
  • Aggravated Driving While Intoxicated Per Se – N.Y. VTL § 1192(2-a)(a)
  • Aggravated Driving While Intoxicated Per Se with a Child – N.Y. VTL § 1192(2-a)(b)
  • Driving While Intoxicated – N.Y. VTL § 1192(3)
  • Driving While Ability Impaired by Drugs – N.Y. VTL § 1192(4)
  • Driving While Ability Impaired by the Combined Influence of Drugs and Alcohol – N.Y. VTL § 1192(4-a)
  • Vehicular Assault in the Second Degree – N.Y. Penal Law § 120.04
  • Vehicular Assault in the Second Degree – N.Y. Penal Law § 120.03
  • Aggravated Vehicular Assault – N.Y. Penal Law § 120.04-a
What Are the Defenses to Driving While Intoxicated, Per Se?

There are many defenses to New York DWI charges. A successful defense may either reduce your sentencing exposure or result in the prosecution withdrawing the case against you or the jury returning a "not guilty" verdict. The most common defenses include the following:

  • You were not "operating" the vehicle;
  • Problems with the way the government processed your sample;
  • Police officers did not follow the protocol for collecting your blood or breath sample;
  • A lack of probable cause or reasonable suspicion to pull you over or to demand you submit to chemical testing.
What Are the Penalties for Violating NY Vehicle & Traffic Law § 1192(2)?

Driving While Intoxicated is a misdemeanor, punishable by up to one year in a penitentiary or county jail. A DWI conviction will also result in a fine of at least $500, up to $1,000. In addition, the court must impose a probation sentence to be served after any term of incarceration. During your probationary term, for up to a year, you will need to install an ignition interlock device on any vehicle you own or operate. However, the court must remove the interlock requirement if you install and maintain the device on your vehicle without issue for six months.

Speak with an Experienced New York About Your Driving While Intoxicated, Per Se Case Today

If you were recently arrested for a NY DWI offense, it is important that you understand the various defenses available to you. The New York DWI / DUI defense lawyers at Tilem & Associates, P.C. have more than two decades of experience defending good people charged with serious DWI-related crimes. We understand the best DUI defenses, when they apply, and how to effectively use them to reach the best result possible in your case. We are immediately available to meet with you to get started working on a compelling defense to the charges you face. To learn more, and to schedule a free consultation today, call 877-377-8666. You can also reach us through our online contact form.

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