Thursday, February 14, 2013


New York State's penalties on driving while intoxicated vary depending on the level of intoxication, the age of the driver and passengers, location of offense and prior convictions. But various types of conduct can actually get you charged with a DWI, even if you were not driving a vehicle at the time you were stopped by police.
New York DWI laws include the "common law" theory, which is based on police observation of impairment, and the "statutory DWI charge," which occurs when a test is administered to determine that a driver's blood alcohol content is above the legal limit of .08. Police determine blood alcohol content levels through either a Breathalyzer, urine, blood or saliva test. Refusing a BAC test usually results in a revoked license.

Driving Stopped and Sleeping Arrested for DWI

In October, a defendant  was arrested for driving while intoxicated after New York State troopers found him asleep behind the wheel of his running car. The police noticed his  vehicle was only partially parked and was blocking the traffic lane.
Upon finding the driver, the police reported smelling alcohol. He was charged with a felony DWI due to his previous DWI conviction in the past ten years. He faces a potential maximum sentence of four years in jail.
In this case, the DWI defense attorney might argue that the driver was not "operating" his vehicle but sleeping in it. But while the exact definition of "driving" or "operating" a vehicle is arguable within DWI laws, most courts have ruled that a conscious person sitting behind the wheel with the keys in the ignition is in operation of or intends to operate the vehicle.

Other Scenarios Where Drivers Might Be Charged with DWI

In most cases, if a driver has control of a vehicle's keys and is in or around the car, courts have ruled that the driver is, by law, operating the vehicle. But in some other states, courts have dismissed a DWI charge after the driver was proved to have not been driving on the "roads and highways" included in the language of the law, but on ditches, frozen lakes, parking lots and driveways.
Drivers who drive at or below the legal limit can still be charged with a drunk driving offense. New York law states that drivers with a BAC of .05 to .07 are below the legal limit, but are guilty of driving while alcohol impaired or DWAI.
Drivers under age 21 will be charged with DWI if found to have any traces of alcohol in their system while driving, known as the Zero Tolerance Law.
If you have been arrested or charged with DWI or a drunk driving offense in the Buffalo Area of New York State, contact an experienced DWI attorney, J John Sebastian.

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