As a practicing criminal defense trial attorney for over 36 years in New York State I have seen a lot of changes that has led to more people getting arrested and convicted of DWI than ever before. When I started practicing in 1974, the blood alcohol level for DWI started out at.12 and then was reduced to.10 (where it remained for a long time) and then it was brought down to.08% blood alcohol.
At the same time Driving While Impaired has remained at.05% blood alcohol for at least the last 35 years, so there is now only a.03% difference in blood alcohol percentages between the two offenses. Yet, there is a big difference between the two charges in New York.
Driving While Intoxicated is described as an unclassified Misdemeanor ( which is treated as an “A” Misdemeanor – the highest Misdemeanor) while Driving While Impaired is a Violation and is not considered a crime. The difference is vast because with DWI, you are convicted of a crime and with DWAI you are not. That can make a huge difference to potential employers in the future when you’re looking for a job and have to answer the question as to whether you’ve ever been convicted of a crime.
The purpose of this article is to first help you avoid getting arrested for DWI. Of course, the best way to avoid getting arrested for DWI is to refrain from drinking any alcohol whenever you expect to drive afterward. (In my opinion, that is what NY State intends upon imposing in the future upon the driving public – no driving at all after drinking alcohol.) So, rather than waiting for them to pass such a law, act like it’s already in effect and avoid being arrested by not drinking and driving.
It’s best to remember that if you are driving your car and you have even the slightest odor of digested alcohol on your breath, you are going to subjected to a field sobriety test at the very least if you are stopped by the police. That’s why its best to avoid drinking in the first place whenever you’re going to drive.
It’s also good to remember that the DWI laws in all states are perhaps the most unfair criminal laws on the books today. That’s because nobody can advise you exactly how much alcohol you must imbibe for you to have more than.05% or.08% blood alcohol in your body. Nonetheless, the law is one of absolute criminal liability if you have more than those amounts in your blood stream and it impairs your driving ability to the slightest degree.
That means if you have more than those amounts of blood alcohol and show any type of impairment in your driving (such as speeding, changing lanes without signaling, weaving within a lane or just about anything else) you will be arrested for DWI or DWAI (Driving While Ability is Impaired).
So what’s the answer? What can you do to avoid being convicted of DWI (Intoxicated) or DWAI (Impaired)?
First, as a practical matter, if you’re going to drink, as mentioned before, it’s best to avoid drinking any more than two drinks – such as: hard liquor (with or without a mixer, etc.), 2 – 12 ounce domestic beers, or 2 – 6 ounce glasses of wine over the course of two hours. Of course, it’s always better if you spread your drinks out over a period of at least two hours in order to allow your body to process and digest the alcohol you have imbibed. Remember, your body usually digests and expels one ounce of alcohol per hour, but that figure can vary depending upon your personal bodily metabolism, gender, etc.
By drinking those limited amounts, it is possible you will increase your blood alcohol to around or above the.05 level (making you liable for a Violation of the DWAI law), but you should at least remain under the.08 level for a Misdemeanor charge.
However, these are estimates at best since there are many variables that play a role in one’s actual blood alcohol level. Those variables will likely affect the percentage of blood alcohol in your blood. Some of the variables are the weight of the person drinking (if the person weighs more, they can usually tolerate more alcohol because their blood alcohol percentage is usually less because their body represents a larger percentage of the total); If you eat while you drink (usually food such as bread, butter, peanut butter and other fatty foods, that will often reduce some of the alcohol from reaching your blood stream as quickly.
Remember, there is little or no scientific evidence that eating fatty or starchy foods works to reduce your blood alcohol content, but there are a lot of anecdotal reports that claim by eating while drinking, it reduces a drinker’s adverse influence of alcohol on them. Many people’s personal experiences confirm this, but this is only a suggestion, not an absolute determination and the breath test is what finally decides in most cases.
Next, if you’re going to drink, make sure you have a designated driver available to drive you home. If you don’t have a designated driver, then its best to avoid driving after drinking. Remember, your own ability to self-evaluate whether you’re intoxicated is already impaired, so its best to assume you are impaired if you’ve been drinking at all. In the alternative, it is suggested that you give your car keys to a friend with you and ask to be driven home or hire a cab beforehand to drive you home if you expect to drink enough to be impaired.
So how does one know if they will blow a.08 or more on a Police Breathalyzer machine and be considered DWI? One way to be sure of your exact blood alcohol level is to buy and keep a breath alcohol testing device in your car. That way, before you even get into your car, you can blow into the tester and see what reading comes up for your blood alcohol. If it’s over a.05, let someone else drive. You can find portable breath testing devices on the Internet for as little as $80.00 and they will help you know when you’ve had too much to drink. This is a great way to avoid DWIs and DWAIs.
If you discover or even suspect you are too intoxicated to drive and you can’t find another way to get home, here is some important advice to avoid being arrested for DWI or DWAI – even though you may not think you are operating the vehicle.
Do NOT sit in the driver’s seat and start the engine to stay warm or cool, listen to the radio or even to fall asleep. Once you have the key in the ignition, most police will take the position that you are operating your vehicle and you will most likely be arrested if you are intoxicated or impaired. If you find you must remain where you are because you have no other way to get home and you’re intoxicated, the best thing to do is leave your vehicle where it is and go get something to eat. In other words leave your car and get away from it as soon as you can. Police have been known to arrest people as much as a ½ mile from an accident – even when a person is nowhere near it.
If you must stay in your car, sit in the back seat and leave the keys elsewhere, like in the glove compartment or give them to someone else and remain in the cold if necessary. Do NOT leave your keys in the ignition – even with the engine off. Do not even carry your keys in your pocket if you sit in the driver’s seat. I know these recommendations sound strange, but they are ways to avoid being arrested if you follow them. It is usually best to leave your car where it is and find another way home. Not only is it safer, but it will avoid an unnecessary arrest for DWI and DWAI. louisiana criminal lawyer