What Does It Mean If I Blew More Than A 0.10% BAC When Stopped For DWI Or DUI By Police?
Suppose you blew into a portable breath test device, or PBT, when the police pulled you over on the side of the road. In this situation, if you blew over a certain number (typically .08% B.A.C.) you will likely be placed in custody and transported to the police station. Once you get to the police station, you will be asked to take a chemical test, otherwise known as a breathalyzer. B.A.C. stands for Blood Alcohol Concentration.
The 0.10% BAC result indicated on the PBT administered by the officer at the scene or roadside will NOT be admissible in court (the B.A.C. level.) PBT B.A.C. level results are not admissible in court because the PBT is not a calibrated instrument. Therefore, courts have not deemed the PBT results to be sufficiently reliable for evidentiary purposes insofar as representing an accurate B.A.C. result.
Conversely, the PBT is deemed sufficiently accurate for in-court evidentiary purposes to reveal whether the presence of alcohol existed but does not extend to disclosing the PBT B.A.C. result. Thus, the 0.10% B.A.C. result may provide the officer with a preview of what to expect if the motorists submits to the Chemical Test (Breathalyzer) given at the station. Still, the PBT level will not be admissible in court.
If the PBT yields a positive result for the presence of alcohol (disregarding the BAC level indicated,) that in and of itself with other indicators such as the officer detecting the odor of an alcoholic beverage, motorist admissions, performance on Standardized Field Sobriety Tests given at the scene, and other factors can support the conclusion of an impaired operator and conclude that probable cause existed to take the individual into custody (think arrest) for DWI.
A positive result for the presence of alcohol means the police
can proceed to the next step in placing you in custody.
By placing you in custody, the police will likely take you to the station to request that you submit to a Breathalyzer (Chemical Test) at the station. The police may, in lieu of proceeding to a police station, take you to a hospital or other medical facility for a blood test o be administered. Either way, you will likely be arrested and charged with Driving While Intoxicated (DWI).
I Took A Breathalyzer At The Station And Blew A 0.18% B.A.C. How Serious Is My DWI Or DWI Charge?
Suppose you blew 0.18% on the breathalyzer at the police station. In New York State, you will be charged with Aggravated Driving While Intoxicated, and that is due to the resultant elevated B.A.C. level. In New York State, an Aggravated DWI is charged when your B.A.C. level is .18% or more during the operation of a motor vehicle.
A second way you can be charged with Aggravated DWI is under a LeAndra’s Law theory. This manner of Aggravated DWI occurs when you operate a motor vehicle with a .08% or more (DWI) and you have a child less than 16 years of age in the vehicle at the time. This form of Aggravated DWI is charged as a Felony under New York Vehicle and Traffic Law section 1192 subd. 2aa.
An Aggravated DWI comes with enhanced penalties, beyond those levied with a regular DWI, such as:
- Increased fines
- Longer driver’s license revocation periods than a regular DWI
- Longer periods than regular DWI with installation of an ignition interlock device in car
Suppose it’s the first time you get pulled over for DWI and you ultimately blow 0.18% BAC. The charge would still be a misdemeanor, called Aggravated Driving While Intoxicated, since it was your first time. However, the penalties for an Aggravated DWI are more severe. They include increased court fines and extended license revocation periods.
Is My Professional License At Stake For A DWI Or A DUI Conviction Where My BAC Was At Or Under 0.08%?
Depending on which state professional license possessed, your license may be at stake or subject to disciplinary action such as suspension if convicted of DWI or DUI. Generally, though not always, you must have a 0.08% or higher BAC for you to be subject to a “criminal” conviction for DWI. A conviction for misdemeanor level DWI is what can impact one’s professional state license. If you are convicted of a charge that is lower than a crime, i.e., a charge lower than a misdemeanor or a felony, that lower level of conviction typically does not impact one’s professional state license in New York State, absent other circumstances.
In New York State, if you took the Chemical Test (Breathalyzer) or a Blood or urine test, the result must typically be a .08% B.A.C. or more for a DWI criminal conviction (though not always.) Remember, if you Refused to take the Chemical Test (Breathalyzer,) you could still be convicted of DWI without a B.A.C. result depending on the underlying circumstances in your case.
Many professional licenses will not be spared scrutiny if the BAC is under 0.08%. If you blew less than .08% B.A.C., that BAC level typically does not result in a conviction for DWI. Since a B.A.C. result less than .08% does not typically result in a DWI (noting there are exceptions,) a motorist would typically face the traffic infraction level charge of “Driving While Ability Impaired” in New York Stat. Driving While Ability “Impaired” is a lesser degree of charge than Driving While “intoxicated.’)
In most instances, your professional license will not be in jeopardy for a first offense if you blew less than .08%, with the important proviso that each case depends on the specific circumstances. An important example is that if you have a combination of alcohol and other drugs in your system, that .08% B.A.C. threshold is NOT required and you can be charged with the criminal (Misdemeanor level) charge of Driving While Ability Impaired by the Combined Influence of Drugs or of Alcohol. A “combined influence” charge falls under Vehicle and Traffic Law Section 1192 (4-a). In a DWI Combined Influence charge, a .08% threshold level B.A.C. is not required and your professional license can be negatively impacted.
The consequences vary depending on:
- Which particular state professional license you hold
- The specific requirements in maintaining your particular professional license in good standing
- Other circumstances such as whether this is your first offense or recurring, etc.
Is My Professional License At Stake For DUI Or A DWI Conviction Where My BAC Is Above 0.08%?
Depending on your professional license, a particular disciplinary proceeding may occur if there is a resulting charge and conviction for DWI or where your BAC was at or above 0.08%.
For example, in a circumstance where you are a licensed physician or nurse, a criminal conviction (Misdemeanor or a felony) can automatically lead to a disciplinary inquiry or charge by the state Office of Professions or other governing state licensing body. A criminal conviction can lead to an automatic infraction against your license. The level of disciplinary measure varies by professional license and circumstances surrounding the event.
As a DWI attorney and former 22-year state trooper, I have represented many individuals across a broad spectrum who hold state professional licenses. From nurses to doctors to physicians to police officers to teachers, to security guards to correctional officers to individuals with CDLs, I have represented a wide array of individuals who hold state professional licenses. State professional licenses vary in terms of exposure if a charge or conviction occurs. The protocols surrounding a teacher’s state professional license, for example, may vary from protocols associated with state professional licensing of a real estate professional or that of a security guard.
The state governing agency that oversees your professional license, and sometimes your employer, may on occasion get notified automatically when you are arrested based on a match or “hit” of your fingerprints.
In some instances, the professional license board is automatically notified following your arrest based on the fingerprint submission by the arresting police agency. When you received your professional license your fingerprints were taken and placed in a database. As a result of your arrest and submission of fingerprints a match occurred. I have seen where the Accused defendant’s employer was notified and became aware of the arrest within a day of its occurrence. Always prepare or contemplate that your employer will be notified if you hold a state professional license and are arrested for DWI in New York State!
Is A DUI/DWI Charge Different Than A DUI/DWI Conviction?
A DUI/DWI “charge” relates to the formal written document, oftentimes a written ticket, that the arresting police agency files with the court located in the jurisdiction or location where the DWI allegation occurred.
A DWI or DUI “conviction” can result following either a voluntary plea of “guilty” by the accused defendant motorist to the charge in court or following a trial when either a jury or the judge (called a bench trial, if held only before a judge) finds you guilty after evidence is presented and considered, to include police and other witness testimony.
For more information on Facing DUI/DWI Charges In New York State, an initial consultation is your next best step. Get the information and legal answers you seek today by calling attorney and former 22-year state trooper Randall F. Inniss (845) 533-0265.