What is the Legal Limit for Alcohol in New York?
A person driving a private motor vehicle in New York is subject to a standard 0.08% BAC limit, which is regulated by Vehicle and Traffic Law (VTL) § 1192-a(2). However, even equally important to know is that there are different BAC limits for different types of vehicle operators in New York State. In fact, there is also a special lower BAC limit that applies only to underage drinkers.
Commercial Drivers
Any driver operating a commercial vehicle with a commercial driver’s license (CDL) is subject to a 0.04% BAC limit. More importantly, any person operating a commercial vehicle with a CDL who is found with any amount of alcohol in their system can be charged with commercial driver’s license alcohol. See VTL § 1192-a(1) . This could include penalties such as a 30-day suspension for a first offense for the driver’s standard license.
Underage Drivers
Many people are surprised to learn that even though most standard drivers are not penalized unless their BAC is 0.08% or higher, a passenger driver license holder under the age of 21 is charged with driving while intoxicated at any BAC greater than 0.02% and faces such charges as a first-degree offense. A driver with any invalid license or learner’s permit above 0.02% will be charged with first-degree aggravated unlicensed operation of a motor vehicle. See VTL § 1192-a(a).
Knowledge of the legal limits in New York State is critical to being able to form a stronger defense against a criminal charge for driving while intoxicated.
Penalties for Going Over That Limit
Those caught driving above the 0.08 percent alcohol limit face serious legal consequences, including fines, license suspension, and even jail time.
Under New York law, drivers caught by police with a blood alcohol content (BAC) above 0.08 percent may face criminal charges that may result in misdemeanor criminal charges. This first offense may also include a fine of up to $1,000 as well as a suspension of the driver’s license for 90 days. In addition, the penalty for a first offense may include five days in a local jail or 15 days of community service.
To emphasize the seriousness of having a BAC above the legal limit, this charge is not a traffic infraction but a misdemeanor. If the driver under the influence gets into an accident, they may be subject to felony charges, which can carry a maximum sentence of up to seven years in a state prison.
A second offense comes with increased penalties. The driver faces between five days and six months in jail, 30 days of community service or a fine of up to $5,000. The judge may also suspend the driver’s license for one year in addition to mandatory use of an interlock device. This device is used to measure the driver’s BAC in order to allow the driver to operate the vehicle if sober. If the BAC is above the legal limit, the device will not start the engine. A third or subsequent offense will result in a felony charge, which may include a prison sentence of up to four years.
How They Measure Your BAC (Blood Alcohol Content)
In New York State, when someone is arrested on suspicion of Driving While Intoxicated (DWI), they are subjected to multiple tests to determine their blood alcohol content (BAC). The two most common methods used by law enforcement officers are the portable breath test (PBT) and the breath test that is taken after a DWI arrest. It is important to note that consent is assumed for a breath test in New York State, however, you have the right to a refusal when it comes to the PBT. The PBT is the first test administered in DWI situations, and is done to give the officer a better idea of whether or not they should proceed with a DWI arrest. This test is much less accurate than the subsequent blood alcohol content test.
The breathalyzer test that is given after an arrest is used to determine the blood alcohol content of the accused party’s blood. The BAC of someone’s blood directly correlates with how their DWI lawyer will build defense strategies. The breathalyzer goes through eighteen preparation steps before the actual test begins and then uses infrared spectroscopy to get an accurate reading of the BAC. It is important to note that if you do not pass the PBT, you can ask for a qualified witness to be present before the Breathalyzer test is given.
From both of these tests, law enforcement is able to determine the BAC (Blood Alcohol Concentration) of the arrested party, which is determined by milligrams of alcohol per 100 milliliters of blood- which is also equal to per 210 liters of breath and per 2,100 milliliters of breath. So all three measurements are actually equal to one another- which is something that a skilled DWI attorney will consider when crafting your defense. If someone’s measured BAC is .08% (which is .08 grams of alcohol per 100 ml of blood), they are legally intoxicated in the state of New York.
Ways to Stay Under that Legal Limit
While no amount of alcohol can guarantee a BAC at or below the legal limit, there are several precautions drivers can take to help ensure that they avoid charges of DWI. For starters, if you plan to drink, try to space out your drinks throughout the night. In addition to allowing your body more time to metabolize the alcohol and remove it from your bloodstream, pacing will also help you avoid becoming overly intoxicated – as well as spending a large amount of money at the bar! Alternately, you may want to consider avoiding alcohol altogether and opting for soda, juice or water. If you do choose to drink, however, ensure that you are always aware of how much you’re consuming and that you keep track of how many servings you’ve had. As mentioned in the previous section on how alcohol affects the body, serving size is important in determining how much alcohol is actually present in your system.
Another way to stay within the legal BAC limit is to eat a full meal before or while you drink. Consuming food slows the rate at which alcohol enters the bloodstream. Keep in mind that eating a full meal after you have already started drinking will not slow the effects of alcohol any faster, so be sure to eat before you start drinking, and in addition to alcoholic beverages, consider consuming plenty of non-alcoholic drinks and water. Drinking water between alcoholic drinks will also help keep you hydrated and may additionally help you avoid the "next day hangover."
Even if you don’t plan to drink while out, it is still a good idea to pre-arrange a ride home. Having a designated driver or cab service on speed dial will help ensure that if you do drink, you do not get behind the wheel. According to the Centers for Disease Control and Prevention (CDC), designated drivers reduce the risk of crashes among drunk drivers by more than 30 percent. If you are thinking of having friends or family serve as your designated drivers, ensure that they are committed to the task and not drinking any alcohol during the outing. In some cases, drivers will believe that they’re being safe by just having a few drinks or by ensuring that they are below the legal limit, but this will still result in impaired judgment and delayed reflexes.
The Ways Drinking Impacts Driving
When we consume alcohol, our cognitive abilities and the capacity to make decisions quickly are impaired. For example, we might misjudge the distance to the car in front when we attempt to overtake. We might also feel overconfident and drive faster than we normally would. Furthermore, our reaction times are significantly reduced. It is for this reason that the drink drive limit applies during both the day and at night. We are covered by the drink drive limit 24 hours a day. Alcohol can also affect the quality of our driving in ways we might not consciously notice or recognize. For example , it means body movements are less subtle. Pressing the brake pedal or changing gear requires up to 20% more force than when you are sober. This is also true for turning the steering wheel and indicates that levels of control are impaired. Alcohol affects the processing of information in the brain. A person under the influence will struggle to remember information that is given to them before getting behind the wheel. This could be the route they need to take, or the distances or speeds of other vehicles. It will also affect the driver’s ability to perceive their own abilities. Concentration levels are also affected. Drivers who are under the legal limit but still over the limit legally when driving are worse drivers than those who are under the legal limit altogether. Therefore alcohol affects not just our own faculties but also our perception of others, our reaction times and our facial and destination recognition.
Zero tolerance laws and underage drivers
For drivers under the age of 21 in New York State, there exists a zero tolerance policy toward alcohol consumption. In such cases, law enforcement officers will not only perform a chemical test if you are pulled over for suspected driving while intoxicated, but they will also perform a preliminary breath test (PBT) under the assumption that an underage driver will be consuming alcohol.
If the PBT indicates a blood alcohol content that is greater than 0, law enforcement can assume that you have been consuming alcohol and will be arrested for a DWI. This is an administrative step that is only taken with underage drivers.
This brings forth another important point – an underage driver cannot legally refuse to take a chemical test that is requested by a police officer. So while an officer may not initially ask for a breathalyzer or blood test, they can order a preliminary breath test that you must comply with. It is not illegal for an underage driver to request to speak with an attorney before submitting to any chemical test, but it is illegal to refuse the PBT.
The consequences for refusing a chemical test as an underage driver are significant. The New York Department of Motor Vehicles has the authority to suspend your driving privileges for one year, and the fine for a first-time offense is $300. The law does not differentiate between being over the legal blood alcohol content limit (0.08) and blowing a zero on the PBT for being under 21 – both offenses are treated exactly the same.
Moreover, you are subject to all of the legal penalties associated with a DWI. In New York, a first-time conviction can result in a fine between $500 and $1,000, a jail sentence of up to a year, a six-month license suspension and mandatory completion of an alcohol abuse assessment or treatment program.
If you have been arrested for DWI, you should contact a DWI defense attorney in New York.
Recent developments in New York DWI law
Despite the fact that drinking and driving is rarely, if ever, harmless, states usually prefer to rely on education and non-criminal interventions, where possible. After those measures have failed, states turn to more punitive measures and harsher criminal laws to deter individuals from this behavior. New York is no exception to the trend. During the last several years, our state has enacted several legislative amendments and adopted new enforcement strategies to better combat driving under the influence. In 2015, New York State passed "Leandra’s Law," which increased the penalties associated with drunk driving. Leandra’s Law applies specifically to those who commit drunk driving with children in the car and increased the possible penalties for drunk driving by raising the penalties faced by offenders. Leandra’s Law added Aggravated Driving While Intoxicated (as well as aggravated driving with a child passenger under 16 years old) to the list of Class E felonies. It also increased the aggravated vehicular homicide offense from a Class B felony to a class A-1 felony (meaning that it could carry a life sentence). Additionally, Leandra’s Law mandated that those convicted of the above offenses install ignition interlock devices in any vehicle that they might operate or own during their sentence, even if they are not the primary owner of the vehicle. Leandra’s Law requires these offenders to use such devices for at least six months. Finally , Leandra’s law created the new Class A misdemeanor of Aggravated Driving While Intoxicated, which applies when an offender’s blood alcohol content is .18 percent blood alcohol content or higher. Previously, New York had only established a crime for driving while intoxicated at .08 BAC, essentially allowing drivers to ingest considerably more alcohol without much risk of being sanctioned. Leandra’s law narrows the gap between one drink and two drinks and driving. Recently, the New York State Court of Appeals held that police officers must execute a search warrant before they can administer a breathalyzer test. The majority of judges held that the blood drawn following a search warrant qualifies as a warrantless search because it took place before the warrant was issued, waiting for the issuance of the warrant and then drawing the blood was an illegal search and against the 4th Amendment. Nonetheless, the Court granted motions to invalidate search warrants on the basis that officers "required a warrant in every case and the system at first granted them too easily." This practice of relaxing and granting warrants too easily for blood draws is now illegal. In order for blood draws to be legal, officers must secure probable cause and a warrant before proceeding with the blood draw. Overall, judges have strict guidelines to follow when analyzing probable cause requirements under the 4th Amendment.