Ithaca DWI Lawyer: Legally Guilty of DWI with Less than .08 BAC

New York State like every other state has a DWI law which states that if you are driving with .08 BAC (blood alcohol concentration) or more you are guilty of driving while intoxicated. New York has another DWI which is called common law intoxication which doesn't require a BAC level at all.

What if your BAC level doesn't match your behavior, responses, and abilities?

Can you be found GUILTY of a New York DWI with a BAC of .07?

Can you found GUILTY of a New York DWI with a BAC of .04?

New York State Courts Look at Case Law Regarding DWI at Common Law 

Common Law is just that, law derived from custom and past cases (judicial precedent).

com·mon lawˈkämən ˈˌlô/
nounthe part of English law that is derived from custom and judicial precedent rather than statutes. Often contrasted with statutory law.

The main Common Law New York DWI case is People v. Cruz. 

Cruz pointed to the State Legislature's creation of the statutory trial presumption, set forth at VTL §1195(2)(a), as recognition that the average person can consume a certain amount of alcohol without necessarily impairing his ability to operate a motor vehicle (Id. at 426). 

DWI Common Law is About Average People, If You Can Find One?

I ask, "who is this average person?" Is this same average person the same one who can have a BAC of .04 and be incapable according to the police and the prosecution?

Despite this presumption, however, Cruz recognized that "some persons may find their driving faculties impaired (or intoxicated) by the least consumption of alcohol and, therefore, would be guilty of driving while impaired while others would not (Vehicle and Traffic Law, §1195, subd 2, par [a])." (Id.). Thus, under the rational set forth in Cruz, a chemical test result of less than .05 of 1% of blood alcohol content does not bar a prosecution for driving under the influence of alcohol.

In other words, a BAC of less than .05 allows you to still be prosecuted for  DWI common law. You are still common law INTOXICATED even if and even though your BAC shows (proves) otherwise. We will hold against you your physical and mental infirmities, we will hold against you the lateness of hour, we will hold against you police bias and subjective opinion.

New York State Common Law states that INTOXICATION is mental and physical INCAPACITY. 

New York State Courts Look at Case Law Regarding Incapacity at Common Law Plain and Simple: 

In-capable of thinking and In-capable of physically acting. Just HOW incapable is a matter of perspective, judgment, and situation.

A Great Many Things Affect Capacity After Drinking: 

Age, Medications, Food, Gender, Body Type, Metabolism, Food intake, Time, and Alcohol Intake is ONLY ONE FACTOR. There are so many factors that may determine a person's capacity to perform and to drive a car. Take a visit to Florida where you will see those entering and exiting cars who can barely walk, talk, and function. They are capable of driving? I just don't know how capable they really are? Should they be driving? Are they legally fit to drive? And by what standard are they physically and mentally capable?

There are those among us who have chronic conditions both mental and physical who are normally IN-capable of a great many things. 

In an aging population we should be ever mindful that the judgment of incapacity is highly subjective. A mature motorist with the slight odor of alcohol and a watery eye must beware a young police officer with more time than experience.

Jumping to conclusions of Impairment or intoxication by alcohol may just be a glimpse of the normal aging process. 

Lawrence Newman is a partner in Newman and Cyr which focuses on DWI and criminal defense in the Fingerlakes region of New York State. contact larry@ithacacdwi.com