DWI, DWAI, Aggravated DWI and Plea Bargaining

Are you facing an Aggravated DWI offense near Albany? We may be able to help. See our Aggravated DWI Lawyer page.

Big story in the Times Union today about my proposal for rational DWI enforcement in Guilderland.

The story is incomplete and gets one key detail wrong:
The legal limit for driving while intoxicated (DWI) is 0.08 and the range for DWAI is 0.05 to 0.07.

Under New York State Law, a BAC of 0.05 is not impaired. Section 1195(2) of the Vehicle & Traffic Law says so. The full text is at bottom. My proposal is to instruct our police to follow state law. If someone blows a 0.05, the police should not write a DWAI ticket.

Another inaccuracy: A BAC of 0.06 is not defined as impaired either. It is relevant evidence of impairment, but not prima facie evidence — there has to be more evidence to get a conviction. The issue of a 0.06 did not come up, but police should not write a DWAI ticket on a 0.06 unless they have other evidence of impairment. They usually do, so this is not a big issue.

I had also suggested a change in handling high BAC cases. If our police followed this proposal, it would get more drunks off the road and into treatment. Unfortunately the knee-jerk emotional reaction precluded any rational discussion at the meeting on this.

The article is incorrect both on the law and the specifics of my proposal. Aggravated DWI is 0.18 and above, not 0.17 as the article states.

***Update: Since I posted this, I received a letter from Law Enforcement Against Drunk Driving. It repeats the TU’s inaccuracies, probably because the author gets his law from the newspaper instead of from the statutes. A picture of the letter is at the very bottom of this post.***

I suggested that in some cases our police might not write the Aggravated DWI ticket where the BAC is 0.20 or higher, writing a regular DWI instead.

The controversy here is understandable. Underlying it is the Albany DA’s policy of no plea bargains for 0.20 or higher. State law allows plea bargains for high BAC cases. In most other counties we can still plea bargain these cases. The Times Union did a story on the DA policy back in May of 2008.

Plea bargains get more drunks off the road and into treatment. The normal reduction on an Aggravated DWI is to DWI. It is still a crime. The fines are lower but still over $2000 when you add it all up, and that’s before the insurance impact. The defendant’s license is still revoked, though the length of license revocation is 6 months instead of a year. The defendant has to get evaluated for alcohol abuse and still has to enter the Drinking Driver Program. They still have to attend a Victim Impact Panel.

When you don’t allow plea bargaining, more cases are fought. I’m a DWI lawyer. DWI defense lawyers win a lot of cases. Sometimes we win because our client is innocent. And sometimes we win even though our client is actually guilty. In those cases our client walks. Her license is not revoked. She does not get a DWI on her record. She does not have to get evaluated for alcohol problems and does not have to get treatment. She does not attend a Victim Impact Panel and cannot participate in the Drinking Driver Program.

My proposal would hold more drunk drivers responsible for their crime. It would do more to get them off the road and into treatment. Isn’t that what we want?

Criminal prosecution of drunk drivers isn’t the only solution to address the problem. In the past I have talked about other things we can do. Back in 2005 I talked about how mass transit would reduce drunk driving. I also have talked about zoning for bars — we always require bars to have ample parking. Maybe we should zone bars to mandate less parking. Here’s a link to an article about that in zoning bars for parking in Milwaukee.

I should also mention that the breath tests are unreliable. Check the videos below:
[youtube=http://www.youtube.com/watch?v=JyAWjG8OndA]

[youtube=http://www.youtube.com/watch?v=f5LykjdXKdc]

Adopting arbitrary policies based on the BAC is just plain foolish when you take this into account.

As discussed above, the state law on BAC is below:

VTL 1195(2):
2. Probative value. The following effect shall be given to evidence of blood-alcohol content, as determined by such tests, of a person arrested for violation of section eleven hundred ninety-two of this article:

(a) Evidence that there was .05 of one per centum or less by weight of alcohol in such person’s blood shall be prima facie evidence that the ability of such person to operate a motor vehicle was not impaired by the consumption of alcohol, and that such person was not in an intoxicated condition;

(b) Evidence that there was more than .05 of one per centum but [fig 1] less than .07 of one per centum by weight of alcohol in such person’s blood shall be prima facie evidence that such person was not in an intoxicated condition, but such evidence shall be relevant evidence, but shall not be given prima facie effect, in determining whether the ability of such person to operate a motor vehicle was impaired by the consumption of alcohol; and

(c) Evidence that there was [fig 1] .07 of one per centum or more but less than .08 of one per centum by weight of alcohol in such person’s blood shall be prima facie evidence that such person was not in an intoxicated condition, but such evidence shall be given prima facie effect in determining whether the ability of such person to operate a motor vehicle was impaired by the consumption of alcohol.

Elected Officials, Policing and DWAI

We had an interesting disagreement at a recent town board meeting. I suggested that we direct our police on how to handle certain kinds of cases. The best example is when a DWI breath test shows a blood alcohol content of 0.05. Many police officers will write a DWAI ticket on that breath test result. I think they should not, and that our board has the authority to tell them not to do so.

Some on our board took the position that we cannot tell the police how to do their jobs, even asserting that it would be dangerous for us to do so.

Here’s the thing. A city to the south had a mayor who dramatically reformed policing in that city. I’m not a fan of that mayor, nor of his approach. Rudy Giuliani changed how the NYPD did its business. I may not have liked what he did, but it is my impression that his efforts were well received by most people. No one said that he lacked the authority to direct police policy. Similarly, the NY Governor and legislature decided not to enforce federal prohibition laws (see about halfway down). If the elected officials lack such authority, then democracy is empty.

On the specifics of a 0.05 and a DWAI, the law is clear:

VTL 1195 (2)(a) Evidence that there was .05 of one per centum or less by weight of alcohol in such person’s blood shall be prima facie evidence that the ability of such person to operate a motor vehicle was not impaired by the consumption of alcohol, and that such person was not in an intoxicated condition;

In other words, the law says if the BAC is 0.05 or less, then the person is neither intoxicated nor impaired. These cases are routinely dismissed by many prosecutors. A DWAI ticket should not be written on a 0.05. It’s a waste of everyone’s time and horrendously unfair to the defendant.