Legal Limit in NY

What is the legal limit in New York? Under V.T.L. § 1192.2, the legal limit in New York is 0.08 but beware, as discussed below, you can be arrested, prosecuted and convicted even if you blow under 0.08. Under New York's 0.08 law, how much alcohol can you drink while remaining below the legal threshold to drive? If your blood alcohol concentration (BAC) is exactly 0.08%, you have broken the law. If you blow 0.079 you are safe from the 0.08 law because BAC is rounded down. DWIs have become more aggressively prosecuted over the past decade and this is shown through the continuing lowering of the legal limit of alcohol. Prior to 2003, the legal limit in New York was 0.10%. In 1996, the Zero-Tolerance Law was passed in New York. This law made it unlawful for drivers under the age of 21 to operate a vehicle with a BAC of 0.02 or more.

BAC measures the amount of alcohol that is actually in your blood. This means that there is no way to hide the amount. Methods such as chewing gum or using mouthwash may stop your breath from smelling like alcohol, but it will not lower the alcohol in your bloodstream, which is what a breathalyzer measures. Most intoxilizer machines used by law enforcement in New York City take steps to ensure that mouth alcohol isn't present to ensure that there is no misreading about your BAC. Also, tricks such as drinking coffee may wake you up and feel more alert and sober, but it will have no effect on the amount of alcohol in your bloodstream. Also, sucking a penny before you blow doesn't throw the machine off (we get calls about this all the time).

Your BAC is affected by a number of factors including your gender, weight, drinking rate, and whether you have eaten. Generally women tend to have a higher BAC level than men of similar size that drink the same amount of alcohol. People who weigh more will have a lower BAC than a person that weighs less and drinks the same amount of alcohol. The rate at which you drink alcohol also affects your BAC. The faster you drink alcohol, the higher your BAC will be. Finally, food can also play a factor. People who have food in their stomach will absorb alcohol more slowly and therefore have a lower BAC than someone who has not eaten. Without taking into account any of these factors other than weight and gender, below is a crude chart of how many drinks will affect a person's BAC. A drink is defined as a 12 oz. beer of 5% alcohol by volume (ABV), a 6 oz. glass of wine of 12% ABV, or a 1.5 oz shot of 80 proof liquor.

DWI even in the absence of a 0.08 BAC. While driving a car with a BAC of 0.08% or higher means you can be charged with DWI, it is also possible to be charged with DWI with a BAC below 0.08%. If the prosecutor can show that you consumed alcohol and that alcohol affected your ability to drive to a material degree then you can be found guilty. Therefore it is important to be aware of how alcohol affects you individually and not simply try and figure out your BAC. There is also a less severe form of DWI called Driving While Ability Impaired (DWAI). While this is not a criminal offense, it carries many of the same penalties such as a license suspension and fines. A person can be convicted of a DWAI if their BAC is 0.05-0.07%. "Buzzed driving" can still get you arrested.

If you blow 0.08 or more, is it hopeless? No. Blowing 0.08 or more simply means that you can be charged with DWI but whether you get convicted is a different story. Your best strategy is to enter a plea of "not guilty" at your arraignment, and have your lawyer fight the case. We have obtained dismissals in cases where our clients have blown 0.08 or more and sometimes even when our clients have blown over twice the limit or 0.16 or more. This is because errors committed by the police during your arrest or by the prosecution in court can be used to get your case dismissed. Even if your case proceeds to trial, a 0.08 or greater reading does not necessarily lead to conviction.

Male
Female

Approximate blood alcohol percentage (by vol.)6]
One drink has 0.5 US fl oz (15 ml) alcohol by volume

Drinks

Body weight

40 kg

45 kg

55 kg

64 kg

73 kg

82 kg

91 kg

100 kg

109 kg

90 lb

100 lb

120 lb

140 lb

160 lb

180 lb

200 lb

220 lb

240 lb

1


0.05

0.04
0.05

0.03
0.04

0.03
0.03

0.02
0.03

0.02
0.03

0.02
0.02

0.02
0.02

0.02
0.02

2


0.10

0.08
0.09

0.06
0.08

0.05
0.07

0.05
0.06

0.04
0.05

0.04
0.05

0.03
0.04

0.03
0.04

3


0.15

0.11
0.14

0.09
0.11

0.08
0.10

0.07
0.09

0.06
0.08

0.06
0.07

0.05
0.06

0.05
0.06

4


0.20

0.15
0.18

0.12
0.15

0.11
0.13

0.09
0.11

0.08
0.10

0.08
0.09

0.07
0.08

0.06
0.08

5


0.25

0.19
0.23

0.16
0.19

0.13
0.16

0.12
0.14

0.11
0.13

0.09
0.11

0.09
0.10

0.08
0.09

6


0.30

0.23
0.27

0.19
0.23

0.16
0.19

0.14
0.17

0.13
0.15

0.11
0.14

0.10
0.12

0.09
0.11

7


0.35

0.26
0.32

0.22
0.27

0.19
0.23

0.16
0.20

0.15
0.18

0.13
0.16

0.12
0.14

0.11
0.13

8


0.40

0.30
0.36

0.25
0.30

0.21
0.26

0.19
0.23

0.17
0.20

0.15
0.18

0.14
0.17

0.13
0.15

9


0.45

0.34
0.41

0.28
0.34

0.24
0.29

0.21
0.26

0.19
0.23

0.17
0.20

0.15
0.19

0.14
0.17

10


0.51

0.38
0.45

0.31
0.38

0.27
0.32

0.23
0.28

0.21
0.25

0.19
0.23

0.17
0.21

0.16
0.19

Subtract approximately 0.01 every 40 minutes after drinking.

While most people think of a person's BAC in regards to drunk driving, people also face serious health risks when their BAC reaches a certain threshold. At .3% death becomes a possibility. Below are ten of the highest recorded BACs when the person survived:

  1. 1.6% - South African man in 2010.
  2. 1.5% - Unidentified man.
  3. 1.48% - Man from Wroclaw in 1995. Died a few days later due to injuries sustained in car accident.
  4. 1.37% - Man in Poland in 2013.
  5. 1.33% - American Woman in 1982.
  6. 1.23% - Polish man in 2009.
  7. 1.02% - Polish man in 2012.
  8. 0.97% - French man in 2005.
  9. 0.91% - Bulgarian man in 2004.
  10. 0.90% - American college student Eric Kelly.

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