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Challenging New York’s ‘per se’ laws

On Behalf of | Sep 10, 2019 | DWI |

Your arrest for drunk driving may have been a discouraging and humiliating experience, and you can be certain there is more to come. If police put you through roadside sobriety tests, you may have noticed other vehicles slow down so the occupants could watch. The local paper or news website may have published your name. Perhaps your own family treated you with coolness or accusation after your release.

While you await your court date, you have many things to think about. Maybe you are uncertain how you ended up under arrest when you felt in complete control of your vehicle. Perhaps you are wondering how your blood alcohol concentration reached the legal limit of .08 based on the number of drinks you had. These are important questions to discuss with your attorney.

What is “per se”?

In New York and many other states, if your BAC is .08 or higher, you are impaired “per se.” Per se laws mean that “by itself,” as the Latin phrase means, a .08 BAC is enough to confirm you are impaired. Police do not need other evidence, such as a failed roadside sobriety test or physical observations of intoxication, like slurred words or erratic driving.

On the other hand, even if your BAC is lower than the legal limit, police may arrest you for drunk driving if you exhibit other signs of impairment or if you fail roadside sobriety tests. This is one reason why it is wise to obtain skilled legal counsel and to challenge any evidence against you.

Building your defense

New York lawmakers are considering lowering the legal limit to .05, following several other states. This may create an even tougher situation for drivers. Such a low BAC may be easy to reach with just one or two drinks with dinner. It may also be easier for other factors to interfere with BAC results, such as poor calibration of a breath test device or even the ingredients of your meal.

It is also important to remember that police must have a reason to pull you over in the first place. Additionally, police may not overstep any boundaries that protect your civil liberties. Whether your BAC registers .08 or you are well under the legal limit, you have rights. Among those is the right to obtain legal counsel whenever you are facing criminal charges.


Law Offices of Joseph J. Tock