How Is A DWI Defined In New York?
New York has two separate definitions for driving while intoxicated. The first is driving while intoxicated per se, which is not dependent upon one’s level of impairment; it is dependent upon one’s blood alcohol content. Driving while intoxicated per se requires the prosecutor to prove one operated a motor vehicle while he or she had 0.08 of one per centum or more by weight of alcohol in his or her blood as shown by chemical analysis of his or her blood, breath, urine or saliva.
Let’s unpack that definition:
- Motor vehicle means any vehicle that is propelled by any source of power other than muscular power and is operated or driven upon a public highway, private road or parking lot that is open to motor vehicle traffic.
- Operation occurs when one sits behind the wheel of a motor vehicle for the purpose of placing the vehicle in motion, and when the motor vehicle is moving or the engine is running.
- We measure 0.08 of one per centum or more by weight of alcohol in one’s blood by any test given to determine the alcohol content of a defendant’s blood sample.
It is important to understand that a finding that one operated a motor vehicle and thereafter had .08 of one per centum or more by weight of alcohol in his or her blood permits, but does not require, an inference that at the time of the operation of the motor vehicle, the defendant had .08 of one per centum or more by weight of alcohol in his or her blood. If one drinks alcohol after driving the car and before one takes the chemical test, the .08 of one per centum or more by weight of alcohol in his or her blood may not measure the blood alcohol content at the time of operation.
It is also important to realize that we are not required to accept the infallibility of the chemical test. We can always argue that the person who gave the test lacked the qualifications or reliability to prove the accuracy of the test result beyond a reasonable doubt. We can argue that the lapse of time between the operation of the motor vehicle and the giving of the test creates a reasonable doubt as to the accuracy of the test. In addition, we can argue that the device was not in good working order at the time that the test was administered or that it was not administered properly.
The second way we define driving while intoxicated in New York is by what is often called common law DWI. The statute tells us simply that “no person shall operate a motor vehicle while in an intoxicated condition.” The definitions of the motor vehicle and operate are just as above. An intoxicated person is a person who has consumed alcohol to the extent that he or she is incapable, to a substantial extent, of employing the physical and mental abilities which he or she is expected to possess in order to operate a vehicle as a reasonable and prudent driver.
In deciding whether or not the accused was intoxicated, the court will instruct the jury to consider the following:
- The defendant’s physical condition and appearance, balance and coordination, and manner of speech.
- The presence or absence of an odor of alcohol.
- The manner in which the defendant operated the motor vehicle.
- Opinion testimony regarding the defendant’s sobriety.
- The circumstances of any accident.
- The results of any tests of the content of alcohol in the defendant’s blood.
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