Driving While Intoxicated (DWI)
by Seth Azria on 6/01/2015
New York Vehicle and Traffic Law §1192 defines the the offense of DWI in two different sections:
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 VTL § 1194.
Subsection (2) allows the police and prosecution to charge a DWI based on a chemical test. All drivers in New York have given implied consent to the police to submit to such a test. Refusals of the test are prosecuted as separate cases in conjunction with the DWI case.
3. Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.
Subsection (3) allows the police to charge DWI based on evidence other than a chemical test, such a feild sobriety tests. Typically, a person is charged with violations of both subsections and to convict the prosecuter need only prove one of the two.
"A person is guilty of driving while intoxicated when the driver has voluntarily consumed alcohol to the extent that he [or she] is incapable of employing the physical and mental abilities which he [or she] is expected to possess in order to operate a vehicle as a reasonable and prudent driver”,