New York Criminal Attorney Blog

Driving While Intoxicated in New York is a serious offense with serious consequences. You need an experienced New York criminal defense attorney who knows not only the law, but the science behind the testing. As I discussed in a previous blog, when one is suspected of Driving While Intoxicated but they do not submit to a chemical test such as a Breathalyzer or blood or urine test for many hours after their arrest, it is difficult, if not impossible, to determine what their Blood Alcohol Concentration (BAC) was at the time they were actually driving. As I discussed in a prior blog, in these situations, prosecutors attempt to prove the defendant’s BAC at the time of driving by Retrograde Extrapolation (RE).

To summarize, RE is a process whereby a subject’s BAC at an earlier time is determined by calculating backwards from the subject’s known BAC at a later time. However, the concept of RE (i.e., that one’s prior BAC can be determined by calculating backwards from their current BAC) is based upon some problematic assumptions. First, RE assumes that the subject is in the elimination stage. In other words, that his BAC is going down. That’s not always true. Even after one stops drinking, their BAC will continue to rise as the alcohol is absorbed into the blood stream. For example, one could drink and entire bottle of vodka and then immediately get in a car and drive 100 ft and have an accident. At the time of the accident that person’s BAC would be extremely low; the alcohol would not have had time to enter the blood stream. However, as the alcohol started, and continued, to enter the blood stream, that individual’s BAC would start to rise and would continue to rise for a while even after he stopped drinking. This is called the “absorption” stage.

An hour or more later when that individual takes a Breathalyzer, his BAC will be extremely high (considering he drank an entire bottle of vodka). A Retrograde Extrapolation analysis on that individual would incorrectly determine that his BAC at the time he was driving was even higher than when he was tested because RE is based on the assumption that the subject is in the elimination stage. This assumption is not always correct.

If you are arrested for Driving While Intoxicated (DWI) in New York, you generally, do not take a chemical test of your breath, blood or urine for up to two hours after your arrest (if you in fact take the test). Therefore, while the test you take (usually a Breathalyzer of some type) provides an alleged Blood Alcohol Concentration (BAC) at the time you actually take the test, it does not, nor could it, determine your BAC at the time you were actually driving. Nevertheless, in New York, if your BAC is over .08 based upon a test given within two hours after your arrest, you are guilty of Driving While Intoxicated based upon a BAC in excess of .08 (VTL 1192(2)).

Typically a motorist arrested for a New York DWI is asked to take a Breathalyzer. However, if a serious accident has occurred with serious injuries and/or death, the suspected intoxicated driver will many times refuse to take a Breathalyzer, blood or urine test. Even if they consent to a Breathalyzer, the Police, in such circumstances, may still seek a blood test. Where there are serious injuries or death involved and the suspected intoxicated driver refuses to submit to a chemical test, the police and/or District Attorney’s Office will seek a court order signed by a judge compelling the driver to submit to a test – usually a blood test.

It can take a long time to get a judge to sign an order compelling the driver to submit to a chemical test. As a criminal defense attorney, experienced with DWI matters, I was once involved with a case in which my client was not tested for 19 hours after the fatal accident. During this delay, the driver is eliminating alcohol from his system. How then, can we know the driver’s BAC at the time he was driving if the test was given many hours (even up to 19 hours) after he was driving?

As experienced New York DWI attorneys, we deal with many different types of New York DWI cases. Many times in a New York Driving While Intoxicated (DWI) case, the motorist will have an allegedly high Blood Alcohol Concentration (BAC) but yet perform well on Field Sobriety Tests (FSTs) such as the “Walk-and-Turn”, “One Leg Stand”, and “Finger-to-Nose” tests. Also, many times, despite a high BAC, the motorists will appear fine on a video. When this happens, defense attorneys argue the obvious – the Breathalyzer was not working properly and therefore, the high BAC score was incorrect. Why else would the motorist perform well of the FSTs and appear fine on the video?

In an effort to try and explain this apparent discrepancy between the motorists BAC score, the prosecution will try to offer “Tolerance” Evidence. In other words, the prosecutor will try to make the jury believe that the reason the motorists performed well of the FSTs but yet had a high BAC is because the motorists is a chronic drinker who has been drinking heavily for a long time and therefore, has developed a tolerance to the effects of the alcohol.

However, the prosecutor should not be allowed to offer evidence regarding the motorist’s tolerance where they have no evidence that the motorist is in fact a heavy drinker and has therefore developed a tolerance. Without knowing the motorist’s drinking history and whether they were in fact a heavy drinker, tolerance evidence is completely irrelevant.

The difference between a New York criminal conviction for Driving While Intoxicated and a non-criminal conviction for the violation of Driving While Ability Impaired lies in the extent of the driver’s impairment. In fact, where a defendant is charged with Common Law Driving While Intoxicated, it is a common strategy for an attorney to ask the jury to find the defendant not guilty of Common Law Driving While Intoxicated (VTL 1192(3)) but guilty of the lesser included offense of Driving While Ability Impaired (VTL 1192(1)). Driving While Ability Impaired is a non-criminal traffic infraction while Driving While Intoxicated is an unclassified misdemeanor.

“Impairment” means that the defendant, by voluntarily consuming alcohol or drugs, has actually impaired, to any extent, 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. “Intoxication”, however, is defined in New York as a greater degree of impairment which is reached when the driver has voluntarily consumed alcohol to the extent that he or she is incapable of employing the physical and mental abilities which he or she is expected to possess in order to operate a motor vehicle as a reasonable and prudent driver.

Therefore, one is impaired if their ability is impaired “to any extent” while to be intoxicated one must be totally incapable of operating the vehicle. It would appear that proving intoxication under this totally incapacitated standard would be difficult. However, impairment would be much easier to prove because all that is required is the slightest impairment – i.e., impairment “to any extent”.