Former Manhattan prosecutors specializing in criminal defense and civil rights in state and federal courts.

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DWI/DUI

Chapter 1192 of the Vehicle and Traffic Law makes it illegal to operate a motor vehicle on a public highway while impaired by alcohol or drugs. The term “motor vehicle” includes automobiles, motorcycles and motorbikes, and the definition of “operate” as it applies to motor vehicles in this section can include simply sitting in the driver’s seat of a car while the engine is running, i.e. the car does not have to be in motion. Usually, however, the most important factual issue in these cases is the intoxication level of the accused person. Whether someone is in fact impaired by alcohol or drugs can be proven in two ways: by chemical test or observation. A variety of chemical tests can be used to prove intoxication, but the most common, by far, involves the use of a Breathalyzer, which measures a person’s Blood Alcohol Content (BAC) by sampling his exhalation. BAC is a measure of the concentration of alcohol in a person’s blood. A rough estimator of BAC levels per amount of alcohol consumed is available VTL 1192.5.

Vehicle and Traffic Law 1192.1 prohibits people from operating motor vehicles on public highways while their abilities to drive motor vehicles are impaired by alcohol. A conviction for this violation can result in fines, jail time (up to fifteen days), and the suspension of a driver’s license. One can still be found to have an impaired ability with a BAC below .08%.

Vehicle and Traffic Law 1192.2 makes it a misdemeanor to operate a motor vehicle on a public highway with a blood alcohol content of .08% or more. A conviction for this violation can result in fines, probation, or up to a year in jail, as well as the suspension of a driver’s license. The same penalties are available for those that are convicted of VTL 1192.3, which makes it illegal to operate a motor vehicle on a public highway while intoxicated. Proof of intoxication can include a videotape of a coordination test administered by a police officer, or testimony from a police officer that the accused smelled of alcohol, had bloodshot eyes, was slurring his speech, or otherwise acting intoxicated.

In addition, a person can be found guilty of Aggravated Driving While Intoxicated, in violation of VTL 1192.2(a), when their BAC is .18% or more. A person accused of this crime can also be facing up to a year in jail – as well as increased fines and license suspension – but also is far less likely to be allowed to plead guilty to a non-criminal offense, like 1192.1. Indeed, the VTL specifically makes it difficult for a person to plead to a violation after they have been accused of this crime. See VTL 1193.1(b).

Finally, a person is guilty of the misdemeanor of VTL 1192.4 when they operate a motor vehicle on a public highway with an ability to drive impaired by drugs (1192.4(a) applies to those whose abilities are impaired by a combination of alcohol and drugs). In some instances, blood tests taken at hospitals are used to prove that a person was under the influence of drugs. In other cases, a circumstantial case is made through the use of observations, admissions, and/or the recovery of drugs from the automobile.

Key Penal Law Provisions:

  • Operating a motor vehicle while under the influence of drugs or alcohol
  • VTL 1192.1 (ability impaired) - violation
  • VTL 1192.2 (intoxicated per se – excess of .08% BAC) - misdemeanor
  • VTL 1192.2(a) (aggravated intoxication per se – excess of .18% BAC) - misdemeanor
  • VTL 1192.3 (common law intoxication) - misdemeanor
  • VTL 1192.4 (impaired by drugs) – misdemeanor