§ 1192.2 of the New York Vehicle and Traffic Law (VTL)

§ 1192. Operating a motor vehicle while under the influence of alcohol
or drugs.

1192(2) Driving while intoxicated; per se. "No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article."

What does 0.08 or more mean in a New York DWI / DUI case?

In New York and for purposes of 1192.2, a driver is guilty of this when they are operating a motor vehicle while their blood alcohol level (BAL) is 0.08 of one percent or more by weight of alcohol in the person’s blood. This means that if your blood is at least 0.08% alcohol, you can be found guilty of this section. Importantly, if a breathalyzer test says that you are 0.08, this permits but does not require a finding that your blood alcohol level is 0.08. This means that if you fail the breathalyzer, it does not automatically mean you’re guilty.

The surrounding factors of the test can be considered

  1. The qualifications and reliability of the person who gave you the test
  2. The amount of time that passed between your driving and when the test was given
  3. Whether the machine that was used was in good working order
  4. Whether the test was properly given
  5. Did the person who gave you the test have a valid New York State Department of Health permit?
  6. Your physical condition, appearance, balance, speech, coordination
  7. The presence or absence of an odor of alcohol
  8. The manner in which you were driving

Driving while intoxicated in New York can lead to one or several charges in addition to section 1192-2 as listed above. Section 1192 is the general location for all DWI related offenses in NYC and VTL 11922 deals with one type of New York DWI. Because a DWI / DUI conviction could lead to jail, a permanent record, license revocation, permanent travel, immigration, and employment consequences, and an ignition interlock device, you should contact us at the Law Office of Lance Fletcher for a DWI, DUI, VTL 1192.2 case evaluation.

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