What Is “Per SE” DWI in New York?

VTL § 1192(2) is commonly referred to as “per se DWI.” The charge is called “per se” because it makes it illegal for a person to drive with a BAC of .08% or more regardless of whether such BAC rendered the person “intoxicated” (as opposed to “common law” which only focuses on whether the person is “intoxicated.”

In New York, it is possible for you to have a .08, and not be found to be in an intoxicated condition. Similarly, you can be found to be in an intoxicated condition even if you are below a .08 BAC. For “per se” DWI in New York, it does not matter whether you have a higher or lower tolerance for alcohol; all that matters is what is your blood alcohol content.

While it is “per se” illegal to drive with a .08, it is important to note that the .08 must be proven when you were driving. In most DWI cases in Nassau County and New York, the breath test is not taken until hours after the individual was pulled over. Therefore, there is always a possible defense that the driver’s blood alcohol content was lower when he was driving than when the test was given. In this case, a Nassau County DWI Lawyer would attempt to convince the jury that although you were a .08 when you took the test, you were actually below the legal limit when you driving.

If you believe that you were below a .08 while you were driving, contact Nassau County DWI Lawyer Richard Hochhauser for a free consultation.