Low Breath Test (below 0.08% BAC) DWIs in New York State

Tompkins County and many other counties in New York appear to be prosecuting cases that are either exactly at 0.08% BAC (Blood Alcohol Concentration) or a little below the legal limit. We have handled many of these cases and have heard about others. Sometimes the stop of the car is not for careless or erratic driving, but something as minor as the failure to use a turn signal 100 feet from an intersection. 

There are many problems with prosecuting these types of cases. The majority of these cases have significant issues. In order to prove a “common law” DWI you must fully understand the issue of how breath tests work.  See our page on DWI over 0.08%.

First, it’s important to understand that the statutory blood alcohol levels refer to the level of alcohol in a person’s blood. Despite this, in the overwhelming majority of cases, it is a person’s breath that is tested not their blood. In order to convert the percentage of alcohol in breath into the blood alcohol content defined by statute, the breath machine must make a calculation based upon something called the “blood-breath” ratio. Since the “blood-breath” ratio is not the same for every person, this builds in a certain level of error in determining blood alcohol content by a breath test. We know that every person is not the same physically yet the machine and the Courts use the same Blood to Breath alcohol ratio for everyone.  

If a person registers a 0.08% BAC on the machine, even a slight error in the calculation can mean the person is really slightly below the legal limit, and therefore not guilty of diving with a blood alcohol content above the legal limit. This fact would not stop a conviction for something called “common law” DWI (where intoxication can be proven through other factors such as swerving, or failing the field sobriety tests).  See our page on “common law” DWI.

We have seen arrests for blood alcohol levels as low as 0.04%! This means that you can be arrested for consuming as few as 2 drinks in two hours depending on your weight, sex, food consumption, and level of health. A DWAI (driving while ability impaired) merely requires proving any extent of impairment-not intoxication. If you are charged with Driving While Ability Impaired (VTL 1192.1) with a low BAC number, there are usually ways to defend the case. If you are below 0.05%, there is a legal presumption in New York that you are not impaired.  However, if you are at 0.06-0.07% BAC, there is a legal presumption that you are impaired by alcohol. Presumptions like these must be fought by your attorney.

In Tompkins County (and the rest of the country), we advise people not to drink and drive. Merely a stop for any traffic violation, and the smell of alcohol on your breath may trigger an arrest for DWI even if your blood-alcohol content is well below the legal limit. 

If you are charged with DWAI VTL 1192.1, Driving While Ability Impaired by Alcohol, call us:  607-229-5184

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