Michael A. Ferraro, Esq., P.C.
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How drunk is “too drunk to drive” in New York?

| Apr 20, 2021 | DWI defense |

Like in every other state, it’s illegal in New York to drive with a blood alcohol content (BAC) of .08% or higher. If you do, a chemical test can hand the prosecutor the evidence they need to make their case against you.

But what if your BAC was less than .08? An officer may assert that you were “acting impaired” and arrest you for drunk driving even though your BAC was below the legal limit — but that doesn’t mean the charges will necessarily stick. Here’s what you need to know:

Legal presumptions about chemical tests and drunk driving in New York

State law creates several legal presumptions when it comes to drunk driving. Chiefly:

  • Any chemical test that establishes a BAC lower than .08% may have probative value in your defense
  • If your BAC was .05% or less, it’s considered “prima facie” evidence or “proof” that you weren’t too impaired to drive (although that can be rebutted by the prosecution)
  • If your BAC was between .05% and .07%, it would generally be considered proof that you weren’t guilty of DWI (driving while intoxicated) — but it could also be relevant in establishing that you were guilty of a DWAI (driving while ability impaired)
  • If your BAC was between .07% and .08%, it’s still considered rebuttable “proof” that you were not guilty of DWI, but it’s also given equal weight in proving that you were guilty of DWAI

In other words, there are no 100% absolutes when it comes to questions like, “How drunk is too drunk to drive?” Certainly, if you were over the .08% BAC limit, that’s a problem. However, anything less makes your situation much less clear.

Taking charge of your future in a drunk driving case

As you can see, the laws on drunk driving are far more nuanced than you might have realized. If you’ve been charged with DWI or DWAI, don’t try to handle this situation on your own. Talk to an attorney about your case right away.