Per Se DWI

NY VEHICLE AND TRAFFIC LAW § 1192.2: PER SE AND AGGRAVATED PER SE DWI

The crimes listed under New York’s Vehicle and Traffic Law Sections §§1192(2) and 1192(2-a) (a), can only be charged in one circumstance: when you, after a roadside arrest or vehicular collision, consent to or are required by court order to submit to a breath or blood test for alcohol and register a blood alcohol content (BAC) of equal to or above New York’s legal limit. Unless top New York DWI defense lawyers successfully suppress the results at a pretrial hearing or persuasively discredit its accuracy at trial, this proof creates a near insurmountable obstacle to an acquittal in these cases. In fact, for these two DWI offenses, your blood alcohol content is prima facie evidence of your intoxication, regardless of any observed or actual driving ability at the time of your arrest. Hence their names: Per Se and Aggravated Per Se DWI.

Relevant Provisions of the New York Vehicle and Traffic Law for the Offenses of Per Se and Aggravated Per Se DWI

“Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva….”

VTL § 1192.2

“Aggravated driving while intoxicated. (a) Per Se. No person shall operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva…”

VTL § 1192.2-a, (a)

How New York City, Westchester and Long Island prosecutors charge DWI offenses depends, in part, on your level of intoxication as reflected by any measurement at the hospital or the precinct of BAC. Specifically, if the Breathalyzer or similar device reads between .08 and .179 weight of alcohol to blood ratio, prosecutors are likely to charge you and – if not defended by the best New York DWI attorneys – obtain your conviction for the crime of Per Se DWI. Alternatively, if the alcohol to blood ratio is measured at .18 or higher, the offense of Aggravated Per Se DWI in violation of VTL § 1192.2-a (a) may be charged. While both are unclassified misdemeanors, a filed Aggravated Per Se DWI offense carries higher fines and longer-lasting driving restrictions in the event of a conviction than otherwise may be imposed in cases where BAC is measured at just over the .08 legal limit.

In the event of your conviction for a Per Se DWI offense, the following penalties and punishments may be imposed for a first time offense:

At the Judge’s Discretion
  • Incarceration in jail for up to one year
  • A period of probation of up to three years
  • A fine of $500 to $1,000
  • Revocation of vehicle registration for a period of at least six months
  • Attendance at a session of a victim impact panel
Required By Statute
  • Surcharge Fee of $370
  • Crime Victim Assistance Fee of $25
  • Revocation of driver’s license for a period of at least six months
  • Required installation of ignition interlock device in any motor vehicle owned or operated by the defendant for a period of at least six months

If registered BAC results were measured at a ratio of .18 or higher, a first time conviction for Aggravated Per Se may result in additional penalties at sentencing and can include:

At the Judge’s Discretion
  • A fine of $1,000 to $2,500
  • Revocation of vehicle registration for a period of at least one year
Required By Statute
  • Revocation of driver’s license for a period of at least one year

Lastly, if your license has been revoked for having been convicted of either of these DWI offenses, you may be entitled to receive a conditional license for the period of lost driving privileges.

To learn more about New York’s Per Se drunk driving offenses, including information on New York’s “Two Hour Rule” of implied consent to the testing of BAC and how it has historically played a crucial role to the successful defense to these cases, additional articles written on the subject may be found here.

Schedule a Free Consultation With the Law Offices of Jeffrey Lichtman Today

Despite the long odds and the seemingly insurmountable evidence of guilt, we have obtained many favorable settlements and dismissals in DWI cases, even in the face of BAC results well over the legal limit. Speak to an experienced New York DWI attorney at the Law Offices of Jeffrey Lichtman at (212) 581-1001 today and begin the process of preparing your defense to the criminal charges that follow a New York DWI arrest.