DUI & DWI

What is the New York "Per Se" DWI Law?

By Teo Spengler, J.D.

September 25, 2020

Reviewed by Michelle Seidel, B.Sc., LL.B./JD, MBA

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Can You Refuse a Breathalyzer or Chemical Test in New York State?

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Per se is a Latin term that means "by itself." In many states, including New York, the laws on drunk driving include a per se driving while impaired (DWI) statute that makes it illegal to drive a vehicle with a blood alcohol concentration (BAC) of over a certain percentage. New York law sets several different BAC levels that can apply to a driver depending on the circumstances. All New York drivers should have a clear understanding of the per se law that applies to them.

TL;DR (Too Long; Didn't Read)

New York's "per se" DWI law provides that it is illegal for any person to operate a motor vehicle "while such person has 0.08 of one per centum or more by weight of alcohol in the person's blood." This is usually described as a BAC of 0.08 percent or higher, and it is established by chemical testing of the driver's blood, breath, urine or saliva. Note that an above-the-limit BAC is enough, in and of itself, for a DWI conviction in New York.

Driving While Intoxicated in New York

The laws about driving while intoxicated in New York are found in the state's Vehicle and Traffic Code section 1192. This law makes it illegal for a person to drive under the influence of alcohol or drugs generally, but it also includes specific provisions about the different possible offenses.

The first subsection makes it illegal for a person to operate a motor vehicle while impaired by alcohol. In order to convict a person under this section, the prosecutor must introduce evidence of actual impairment. This might include testimony from the police officer or witnesses about erratic driving behavior or about the driver's poor performance when asked to do sobriety tests involving balance, coordination or cognitive abilities.

Paragraph 2 of the law sets out the basic per se DWI rules. It provides that it is illegal for any person to operate a motor vehicle "while such person has 0.08 of one per centum or more by weight of alcohol in the person's blood." This is usually described as a BAC of 0.08 percent or higher, and it is established by chemical testing of the driver's blood, breath, urine or saliva. Note that an above-the-limit BAC is enough, in and of itself, for a DWI conviction in New York.

Legal Limits and Other Per Se Provisions

While section 2 of Vehicle and Traffic Code 1192 generally makes it a violation of New York law for a person to drive with a BAC of 0.08 percent or higher, in some cases a driver can be charged with a per se DWI in New York with a lesser BAC. For example, commercial drivers in the state can face a level 1 per se DWI charge if caught driving with a BAC of between 0.04 to 0.06 percent and a level 11 per se DWI with a BAC of over 0.06.

Similarly, New York's zero tolerance law makes it illegal for a driver under the age of 21 to drive with a BAC of 0.02 percent or higher. While this is not a criminal offense, it is a civil charge that can result in license suspension and fines. Further, the New York DWI statute classifies driving with a BAC of 0.18 percent or more as aggravated driving while intoxicated. This is a more serious charge that will carry more severe penalties, including up to a year in jail.

Determining a Driver's BAC

When a person drinks, the alcohol passes into their bloodstream. It is eliminated in the breath and in urine over time. When a person consumes more alcohol than their body can eliminate in a given period, their BAC rises. A person's blood alcohol concentration refers to the percentage of alcohol that is found in their blood. For example, a BAC of 0.10 percent means that a person's blood supply contains one part alcohol for every 1,000 parts blood.

In New York, there are a number of tests that can be used to check a driver's blood alcohol concentration including breath, urine, saliva and blood. The most common test is the breathalyzer, which tests the amount of alcohol in a person's breath. Like breath tests, urine tests and saliva tests are indirect methods of checking the alcohol level in the blood. Once a driver is arrested, the law enforcement officer, not the driver, makes the decision about which test to administer, although the driver has the right to a second test by their own doctor if they so desire.

Consent to the Chemical Test

In New York, a driver implicitly agrees to submit to a chemical test if arrested on a DWI charge, even if they don't agree directly. Under the law, they are said to have deemed to have consented simply by the act of operating a vehicle in the state. Note that this also applies to a test during a traffic stop. The police might ask a driver to submit to a portable breath test (PBT) when they are first stopped, but refusal of this test is only a civil infraction.

This deemed consent to submit to a chemical test is not without limits. The police are supposed to measure a driver's BAC within a two-hour period following the DWI arrest. The purpose of a chemical test is to determine the amount of alcohol in the driver's blood while they were driving, and the longer the police wait to test the person, the less likely it is that the test will accurately reflect the BAC while driving. If the driver agreed to take a PBT and it showed the presence of alcohol, the chemical test should be given within two hours of the portable breath test.

Consequences for Chemical Test Refusal

Sometimes drivers refuse to submit to a chemical test. Even though drivers are deemed to have consented under New York law, the police cannot forcibly test an unwilling driver absent a search warrant, usually issued only when the driver caused injury to another person. However, the refusal is itself unlawful and administrative penalties apply. The administrative penalties imposed by the Department of Motor Vehicles (DMV) after a refusal hearing can be more severe than taking and failing the chemical test. And the fact that the driver refused the test can be an element of proof at the criminal trial for the DWI.

The penalties depend on whether this is a first refusal and how many DWIs a motorist has had within the prior five years. If this is a first refusal with no prior DWIs, the driver will get a one-year driver's license suspension and a fine up to $500. For a second or third refusal, or a refusal with prior DWIs, the license revocation period is 18 months and the fine is $750. Any subsequent refusal can cause the driver to permanently lose their license.

The police officer must inform the driver of the consequences for refusing the chemical test. That is, the officer must specify to the driver that they could lose their license for a year and have to pay a fine if they refuse the test.

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