What does "the legal limit" mean?
By Ramy Louis, Esq.
You may have heard that the legal blood alcohol concentration (BAC) limit is 0.08%. But what exactly does that mean? Does it mean that if you blow under 0.08% you cannot be arrested and if you blow above 0.08% you can? Not quite.
There are two relevant New York DWI statutes. The first, is Vehicle and Traffic Law § 1192.2 which is DWI based upon your blood alcohol concentration. The second, is Vehicle and Traffic Law § 1192.3 which is DWI based upon how you were driving, your physical coordination, and your physical and mental condition. Under VTL § 1192.3, police officers will look for many factors to see if you are intoxicated - including whether you have bloodshot eyes, alcohol on your breath, slurred speech, and similar factors. In People v. Farmer, Judge Fuchsberg issued a concurring opinion stating that "it is possible for a defendant to have had the quantity of alcohol in his blood required for conviction under subdivision 2 and yet not be found to be in an intoxicated condition under subdivision 3." 36 N.Y.2d 386, 393 (1975). Additionally, the NY Court of Appeals ruled that "chemical test results below the "legal limit" do not preclude a VTL § 1192.3 charge." People v. Blair, 98 N.Y.2d 722 (2002). This means that if you blow over 0.08 you may be convicted of DWI even if otherwise, you seemed sober. Likewise, if you blow under 0.08 you can be convicted of being intoxicated under a theory that, despite the low blow, you appeared to be intoxicated.
So when people say the legal limit is 0.08 % then that is only partly true - VTL § 1192.2 prohibits driving a car while your BAC is 0.08 % or higher. But regardless of your BAC (above or below .08 %), you can still be found guilty of DWI under VTL § 1192.3. At the Law Offices Of Lance Fletcher, we have fought countless DWI charges for our clients, whether they are based on BAC or not. Contact us if you are facing a DWI charge in New York.