What is Blood Alcohol Concentration (BAC)?
Blood alcohol concentration, commonly referred to as BAC, is defined as the number of grams of alcohol contained in each 100 milliliters of blood. When a person drinks alcoholic beverages, alcohol passes from the stomach and intestines into the bloodstream, where it bonds with red blood cells. The liver partially removes the alcohol from the blood and metabolizes it; excess alcohol remains in the bloodstream until the kidneys remove it from the blood. The human body metabolizes about half an ounce (or 15-20 grams) of alcohol during any given hour. However , the consumption of alcoholic drinks containing additional ounces of alcohol can quickly overload the body’s ability to eliminate the alcohol already in the bloodstream. Once this happens, the individual begins to experience certain reported effects of intoxication, including impaired vision, reduced motor skills, decreased inhibition, and impaired judgment. A person with BAC above 0.08% will experience increased likelihood of experiencing the above-mentioned signs of intoxication. Proving impairment becomes easier the higher the BAC of the defendant. Beyond BAC levels of 0.12% or 0.15%, judges, prosecutors, and juries can more seriously appreciate the degree of impairment of a person with a BAC of 0.12% or more.
What is the Legal BAC in the State of New York?
New York follows the same general pattern as the rest of the United States in terms of blood alcohol levels and their corresponding consequences, but the individual limits and penalties vary. After 1984, the federal government required that all states adopt a legal limit of 0.10 percent for drivers age 21 and older. In 2000, that limit dropped down to 0.08 percent. This is the familiar principle underlying New York Vehicle and Traffic Law § 1192(3), which states it’s illegal for a driver to operate a motor vehicle with .08 percent or more by weight in alcohol in the blood.
In New York, it is also illegal to drive with a blood alcohol content between .05 and .08 percent (a "BAC of .05 to .08 percent of alcohol" puts a driver "impaired by the abuse of alcohol," as specified in Vehicle and Traffic Law § 1192(3-a)). Violation of that statute is a lesser charge known as Driving While Ability-Impaired, an infraction equivalent to a speeding ticket, and one which will not result in points on a person’s driver’s license record. The intent of this legislation is to discourage drinking to the point of impairment without committing the harsher penalties that accompany higher levels of inebriation.
The general BAC limit for commercial drivers is .04 percent. After a 2010 update to the law, the legal limit for drivers under age 21 will be reduced to .02 percent.
Penalties for Exceeding the Legal BAC Reading
Driving with a Blood Alcohol Content (BAC) above the legal limit is an offense that carries serious legal consequences in New York. Consequently, those who exceed the legal limits face substantial penalties, fines, and even jail time upon conviction.
In New York State, laws related to DUI violations are as follows:
Driving Under the Influence (DUI):
.08% – Commonly known as "driving while intoxicated," or DWI
.18% – Refers to "Aggravated Driving While Intoxicated"
Zero Tolerance Law for Drivers Under 21:
.02% – A violation of the Underage Zero Tolerance Law for persons under the age of 21
The penalties for exceeding the legal limits for BAC vary based on several factors, including the driver’s age, the level of the BAC, whether the driver is or has been convicted of DWI in the past, and whether there were any passengers in the driver’s automobile.
Once charged, a driver will become familiar with BAC levels, as it is the primary factor in determining whether a criminal charge should proceed.
Penalties for a BAC above .08%:
Drivers nationwide can be criminally charged when their BAC levels exceed the amount permitted by law, which in New York State is .08%. Under this law, a conviction can result in a variety of consequences:
Penalties for a BAC above .18%:
A BAC of .18% or greater is an aggravating factor which tends to result in more severe penalties, including:
The penalties for drunk driving in New York State are the same for minors as they are for adults. So whether you are 19 years old or 75 years old, the punishment will be the same. However, for drivers under the age of 21, New York State has enacted the Zero Tolerance Law.
Testing the BAC Levels of Individuals
A common and popular method for determining a person’s blood alcohol level is the breath test. The device used is called an intoximeter. There are various intoximeters that are used in New York. For a breath test to be valid, not only must it be done by the police officer in conformity with applicable protocols under the law, but the device must be periodically calibrated as well.
Typically, the intoximeter is rather large device that has the ability to take a sample of a person’s breath and automate the analysis of that sample to determine the level of alcohol in a person’s blood. The officer typically will ask that the suspect blow into the mouthpiece that is affixed to the device. The intoximeter will then perform an analysis, which is then printed out by the intoximeter.
Although the intoximeter is a mechanical device, despite its accuracy, it remains for most purposes merely a "good faith" indicator of a driver’s breath alcohol content. The test results are not necessarily determinative of guilt or innocence in the cases of New Yorkers arrested for DWI. Where the intoximeter results are very near the legal limit (0.08), experienced DWI lawyers often will either have the results tested at an outside lab or will have the driver undergo a blood test at a hospital in order to verify the intoximeter results. By state law, a driver is entitled to a blood test upon request if the intoximeter results are 0.08 or higher. A breath test is less reliable than a blood test or a urine test.
How to Fight BAC Readings in New York
Faced with a drunk driving charge in New York, defendants may use a variety of defenses to contest the legality of their arrest. The following are examples of potential defenses against BAC violations in the state of New York.
Procedural Errors
Police officers in New York must follow specific procedures in order to lawfully administer a field sobriety test. If an officer administers a field sobriety test, which is sometimes necessary in order to determine whether a breath test is warranted, and follows correct protocol, this evidence may be admissible – and strong enough to convict you of a DWI. If the arresting officer fails to follow proper procedures during the arrest process, the case may then be dismissed for violating your fourth amendment rights.
Under the Law
Under the Fourth Amendment, all individuals may be secure in their persons against unreasonable search and seizure. This means that, unless an officer has probable cause to believe you have broken the law, he or she cannot take physical possession of you. Furthermore, the Law requires the officer to follow the correct procedures to establish probable cause. He or she must first undertake a field sobriety test to establish probable cause that you have violated DWI laws . If you can prove the law enforcement officer failed to folllow this procedure, your case may be thrown out or used to reduce your penalties.
Due Process
Your right to due process, mandated by the Constitution, also protects you from unlawful detainment. Law enforcement officers cannot violate your civil rights at any time, and if you are able to establish that your constitutional rights were violated at any time, legal penalties could be decreased or dismissed out of hand.
Substantial Effect – How to Show It
Often, a driver may meet the level of .08 percent BAC, and yet maintain functioning and mental clarity. If you can prove that your impairment was not substantial and your actions were not affected by the BAC in your system, you may be able to get the case reduced or dismissed completely. You may be able to prove this through witness testimony, for instance.
Procedural errors are not the only option for defending against a charge of violating the legal BAC limit in New York. If you can show that the BAC was not sufficient to cause substantial impairment, the charge may be either reduced or dismissed completely.
How to Prevent an Elevated BAC Reading
To minimize the risk of exceeding the legal BAC limit, there are several approaches a driver can use. First, simply limiting or abstaining from alcohol intake is ideal, but may not be reasonable or practical if you are attending an event where alcohol is served – i.e. at a wedding, holiday party, or other function. "Pacing" your consumption is another option to consider. For example, if you drink one 12-ounce beer every hour, it takes your body about three hours to process that amount of alcohol, and you should be sober by the end. Because beer, wine, and liquor have different alcohol content levels and processing times, it is important to read the label or do your research before indulging.
Another good tactic is to eat a full meal before or while drinking, as this will slow alcohol absorption, and to alternate between water (or another non-alcoholic beverage) and alcohol. Again, if you are paying attention to your body’s signals and leaving sufficient time between each drink for your liver and kidneys to process the alcohol before you consume more, you can avoid reaching a high BAC.
Utilizing public transportation, ridesharing apps, taxis, or designated drivers are recommended solutions for ensuring safe driving after a night out. If you do not want to incur the cost of a public car or taxi, contacting a friend or family member can also be a reasonable and effective option.
Further Resources for Help
If you feel that you require further assistance in regards to the legalities surrounding the New York BAC laws and rules, heavy legal resources exist to help you obtain personal insight . The organizations listed below can help you further educate yourself on the law and your rights:
Council on Alcohol and Substance Abuse
National Council on Alcoholism and Drug Dependence
Alcoholics Anonymous New York
New York Bar Association
Kings County Criminal Practice Legal Aid Society
Department of Motor Vehicles – Albany Office
The American Association of Premier DUI Attorneys