New York DUI laws

New York DUI laws

by Corie Lynn Rosen, December 2009

Anyone who has spent time in New York City knows how difficult it is to navigate the city by car. New York is jam packed with diverse people and the city boasts some of the best culture and cool in the United States, but all those benefits are not without a price.

Of course, N.Y.C. is not the only metropolis in the state, but a look at the New York DUI regulations reveals an especially harsh program and this extra toughness is probably due to the fact that the state legislature is looking out for big city drivers and pedestrians who tend to be more aggressive and have accidents more frequently than people living in rural or suburban areas.

Although it has a harsh program of punishment and deterrence, some aspects of New York's DUI laws are quite comparable to those of other states. As is the case nearly everywhere, a DUI arrest in New York gives rise to two distinct cases, an administrative case and a criminal case. The administrative case is conducted by the New York Department of Motor Vehicles, which has the right to revoke or suspend a driver's privileges when the driver may be a hazard to himself or others. The administrative proceeding is relatively straightforward, unlike the criminal case, which can be complicated and expensive to defend.

The criminal case, like other states, may be prosecuted based on two possible theories of liability. The first of these is the per se theory. Under per se theory the prosecution will put on evidence that the accused's blood alcohol level exceeded the legal limit, as evinced by the accused's blood, breath, or urine test(s) administered at the time of arrest. In New York, the legal limit is .08%. When a person's blood alcohol meets or exceeds the .08% limit, he is legally intoxicated.

Although the per se theory seems to create a clear legal rule, for a variety of reasons these test results are not always reliable. Even where the prosecution can show that the accused's results met or exceeded the legal limit, intervening factors such as the accused's metabolism, the reliability of the test, or the method of administration may make it difficult for a court to rely exclusively on blood alcohol test results.

In the event that blood alcohol tests are unreliable, unavailable, or inconclusive, the prosecution will proceed on a traditional theory of driving while under the influence of drugs or alcohol. This theory is a subjective one, and evidence collected by the arresting officer at the time of the arrest may be introduced in court. Observations made by the arresting officer are often the primary source of evidence in a traditional theory case and appearance, speech pattern, driving pattern, and performance on field sobriety tests may all be introduced to prove intoxication.

It is in the area of punishment that New York laws get tough. If a person is convicted of a first offense DUI and then commits a second offense within a ten-year period, the second offense is deemed a felony, regardless of the level of intoxication of the defendant. Felony convictions can carry jail sentences far in excess of a year, making driving under the influence a serious offense by any measure. A first offense will carry with it jail time up to six months and up to a thousand dollars in fines.

Although New York is tough on punishment, it does mitigate the harshness of its penalties with an unusual feature. Any one arrested for DUI in New York has the right to speak to an attorney before agreeing to take a blood alcohol content test. This means that an arrestee is allowed a phone call to his lawyer before submitting to blood, breath, or urine tests that could give rise to liability for per se intoxication. The theory behind this rule is that the arrestee should be allowed to proceed with as much information as possible, making the process of arrest, prosecution, and even conviction and sentencing fairer and smoother.

New York may be a unique state as far as its lawyer-consult rule goes, but like all other states in the country, the courts are tough and driving while intoxicated is a serious crime. In New York, as everywhere, the best advice is always: don't drink and drive.