New York State is strict when it comes to what constituents driving while intoxicated (DWI). It’s understandable if you’re confused with the different types of DWI charges that you might be facing. This might even be the first time you hear about a “DWI Per Se,” which is basically the default charge if your blood alcohol content (BAC) exceeds the .08% legal limit. What are the consequences of these charges?
What Exactly Is a DWI Per Se?
DWI convictions generally refer to situations where an individual drives under the influence of alcohol or drugs. A DWI per se charge, in particular, refers to charges against individuals with a high blood alcohol concentration. In New York, you shouldn’t be driving with a BAC of .08% or higher. You can get a DWI per se charge simply based on the alcohol in your system; no other proof is required.
Now that we’ve defined what a DWI per se charge is, it should be clear. You are either below the legal BAC limit or you are above it. And if you are above it, the police can charge you. However, the circumstances surrounding the arrest aren’t as black-and-white as the overall definition of DWI per se.
These defenses/factors can still work in your favor:
- Illegally obtained evidence
The most common way to measure your BAC is through a blood test. The police would need a lawful arrest, based on probable cause, and your consent, in most circumstances, before they can ask you to submit to a chemical test of your blood. Otherwise, you can have the test results thrown out as a result of it being illegally obtained.
- BAC testing accuracy
Breathalyzers are a common way to obtain your BAC level. You might be able to argue that results are unreliable if you believe that the officer who tested you didn’t follow proper procedures and State required protocols. And of course, you can also argue improper chain of custody if the blood samples were not stored properly and or contaminated.
- Rising BAC levels
Your BAC level is going to rise and fall as your body absorbs the alcohol. This could be a compelling case if your BAC test result isn’t too far from the .08% limit. Often time prosecutors try to argue reverse extrapolation to try to argue your BAC was higher at the time that you were driving your vehicle as opposed to you BAC when you submitted to the breathalyzer. For a stronger defense, you might need the testimony of an expert in alcohol science.
An experienced lawyer can defend you with any of these factors, depending on your situation.
What Are the Penalties of a DWI Per Se?
New York’s implied consent law states that you’re required to take a BAC test if an officer provides reasonable grounds for a DWI charge. If your BAC is at least .08%, your driver’s license might be suspended or revoked for up to one year. Alternatively, you might obtain a conditional license which allows you to drive in limited situations during your license suspension or revocation period.
You might also be under probation for up to three years. During this time, you will need to install an ignition interlock device in your vehicle.
Defending a DWI Per Se Charge
There are a lot of complexities involved in defending a DWI per se charge. Nevertheless, it’s something that our Long Island-based criminal lawyer can help you with. Olivier Roche, Esq. being a former prosecutor in Long Island, has over ten years’ experience either defending or prosecuting DWI Per Se Charges. We thoroughly understand the possible consequences of your charge and we can strongly represent your case to get you the best possible outcome based on the facts of your case.
Call us at (516) 399-0233 when you’re facing such a case. We’ll be your defense attorney.
