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Elements of a DUI (DWI) in New York

Driving under the influence in New York is separated into two main categories. These categories are driving while ability impaired and driving while intoxicated. Under these tests a person is guilty when they fail a field test or a chemical test.

The legal limit for driving while ability impaired is .08 BAC. BAC is the measure of the percentage of alcohol in a person’s blood. If a driver is above the .08 BAC level it is considered per se illegal and the driver is guilty of driving while intoxicated. If a person’s BAC is between the levels of .05 to .07 then that will serve as evidence that they driver was not intoxicated, but will still serve as relevant evidence. A BAC of .07 to .08 shall show that a person’s ability to drive was impaired by alcohol.

A police officer can conduct a field test without a warrant when a suspected driver is involved in an accident. Every person who was involved in the accident and operating a motor vehicle can be subjected to a field test. A field test consists of the officer administering a breath test. If the test shows that the driver has consumed alcohol then the officer can subject the driver to a chemical test.

In a chemical test the driver can submit a breath, blood, urine, or saliva sample in order to determine the alcoholic of blood content of the driver.

An officer can also conduct a field of chemical test if they have reasonable grounds to believe that a driver is under the influence of alcohol or drugs. In order to have reasonable grounds to arrest someone the officer must take in the totality of the circumstances surrounding the event.  That when take all together suggest that there may be signs that the driver was driving while intoxicated or driving while their ability was impaired. Reasonable grounds may also include the existence of an open container, or having an alcoholic beverage around the vehicle, or any other evidence, which might suggest that the driver was operating the vehicle while under the influence of alcohol.

If a person under 21 refuses to having a field or chemical test after being placed under arrest then this serves as reasonable grounds for the officer to believe that the person has consumed alcohol in violation of one of the New York DWI offenses.

When arrested on reasonable grounds suspicion the officer must indicate in their police report the reasonable grounds that were present for arresting a driver for one of the alcohol related offenses.


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