NEW YORK, NY - Under New York Vehicle and Traffic Law § 1192.2, operating a motor vehicle with a blood alcohol concentration of 0.08 percent or higher is illegal regardless of whether the driver shows visible signs of impairment. Manhattan DWI defense attorney Rachel Kugel of The Kugel Law Firm (https://thekugellawfirm.com/vehicle-and-traffic-law-1192-2-driving-while-intoxicated-per-se/) explains what this per se DWI charge means, how it differs from other impaired driving offenses, and what defenses may be available.
Manhattan DWI defense attorney Rachel Kugel notes that to secure a conviction under VTL § 1192.2, prosecutors must prove two elements beyond a reasonable doubt: that the defendant was operating a motor vehicle and that, at the time of operation, a valid chemical test administered under VTL § 1194 showed a BAC of 0.08 percent or higher. The term "per se" means the BAC level alone establishes the violation without additional evidence of impairment. "Many drivers do not realize that prosecutors do not need to prove slurred speech, failed field sobriety tests, or erratic driving to secure a conviction," explains Kugel. "The chemical test result is the central piece of evidence."
Manhattan DWI defense attorney Rachel Kugel emphasizes that per se DWI differs from common law DWI under VTL § 1192.3, which requires proof that a driver was intoxicated to the extent they could not operate the vehicle as a reasonable and prudent driver. Prosecutors often charge both offenses together when BAC evidence and observational evidence are both available. Penalties for a first-offense conviction under VTL § 1192.2 include fines between $500 and $1,000, up to one year in jail, and license revocation for at least six months. A second offense within ten years is classified as a Class E felony, carrying up to four years in prison.
Attorney Kugel highlights that several defenses may be available depending on the circumstances of an arrest. Challenging the legality of the traffic stop is often the first strategy, as officers must have reasonable suspicion to initiate a stop. Breath test machines require regular calibration and maintenance under New York Department of Health regulations, and operators must be properly certified. "If the device was not properly calibrated or testing procedures were not followed, the BAC results may be unreliable," she adds.
Kugel also notes that rising BAC is a recognized defense in per se DWI cases. Because blood alcohol concentration continues to rise after a person stops drinking, a test administered well after driving may show a higher reading than what was present at the time of operation. Medical conditions such as gastroesophageal reflux disease and diabetes can also produce substances that breath testing devices may register as ethyl alcohol, potentially affecting test accuracy.
Under New York's implied consent law, refusing a chemical test carries administrative consequences, including license revocation for at least one year. However, a refusal means prosecutors lack BAC evidence for a per se DWI charge, though they may still pursue common law DWI under VTL § 1192.3. "Understanding the consequences of both taking and refusing a chemical test is important for anyone facing a DWI arrest," Kugel advises.
For those facing per se DWI charges in Manhattan or elsewhere in New York City, consulting with an experienced DWI defense attorney may help identify weaknesses in the prosecution's case and protect driving privileges.
About The Kugel Law Firm:
The Kugel Law Firm is a Manhattan-based law firm focused exclusively on DWI and DUI defense in New York and New Jersey. Led by attorney Rachel Kugel, a member of the National College of DWI Defense and the DUI Defense Lawyers Association, the firm provides direct representation for clients throughout Manhattan and all five boroughs. For consultations, call (212) 372-7218.
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Phone: (212) 372-7218
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