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.

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