Driving While Intoxicated New York

Being arrested for DWI is frightening, especially when you're told your blood alcohol concentration (BAC) was over the legal limit. Even if you felt fine to drive, even if you passed field sobriety tests, even if the officer said you seemed sober, you can still be charged with DWI under New York's "per se" law: Vehicle & Traffic Law § 1192.2.

At the Law Offices of Matthew Cohan, we've successfully defended hundreds of clients against VTL § 1192.2 charges throughout New York. We know how to challenge breathalyzer results, identify procedural errors, and fight to protect your driving privileges and your future.

Understanding VTL § 1192.2: New York's Per Se DWI Law

Under Vehicle and Traffic Law § 1192.2, it is illegal to operate a motor vehicle in New York with a blood alcohol concentration of 0.08% or higher, as measured by a chemical test of your blood, breath, urine, or saliva.

What Makes This a "Per Se" DWI?

The term "per se" means "by itself" or "in itself." Under this statute, the prosecution doesn't need to prove you were actually impaired, driving erratically, or appeared intoxicated. They only need to prove that your BAC was 0.08% or above at the time you were driving.

This is different from a "common law" DWI charge under VTL § 1192.3, which requires the prosecution to prove observable impairment. With a per se charge, the number alone is enough for a conviction, which is why challenging the accuracy and validity of that number becomes critical to your defense.

What the Prosecution Must Prove

To convict you under VTL § 1192.2, the district attorney must establish beyond a reasonable doubt that:

1. You operated a motor vehicle in the State of New York, and
2. Your BAC was 0.08% or higher at the time you were driving, based on a chemical analysis conducted according to state regulations (VTL § 1194)

While this may seem straightforward, there are numerous ways an experienced DWI attorney can challenge these elements. Chemical tests are not infallible, procedures are often violated, and timing issues can create reasonable doubt about what your BAC actually was when you were behind the wheel.

Penalties for VTL § 1192.2 Conviction

A conviction under VTL § 1192.2 carries severe criminal and administrative consequences that extend far beyond fines.

First Offense (Misdemeanor)

• Criminal fines: $500 to $1,000
• Possible jail time: Up to 1 year
• License revocation: Minimum 6 months
• Mandatory ignition interlock device (IID) for at least 12 months
• Completion of the Drinking Driver Program (DDP)
• Victim Impact Panel attendance
• Probation for up to 3 years

Second Offense Within 10 Years (Class E Felony)

• Criminal fines: $1,000 to $5,000
• Possible prison sentence: Up to 4 years
• License revocation: At least 1 year (typically 18 months)
• Mandatory ignition interlock device for at least 5 years
• Felony criminal record

Third or Subsequent Offense (Class D Felony)

• Criminal fines: $2,000 to $10,000
• Possible prison sentence: Up to 7 years
• Long-term or permanent license revocation
• Lifetime ignition interlock requirement if license is restored
• Felony criminal record with enhanced penalties

Additional Consequences

Beyond the criminal penalties, a DWI conviction affects nearly every aspect of your life:

Financial Impact: Auto insurance rates can triple or quadruple. Some insurers will drop you entirely, forcing you into high-risk pools with premiums exceeding $5,000 annually.

Employment: Many employers conduct background checks and view DWI convictions negatively. Professional licenses in fields like nursing, teaching, law, medicine, and commercial driving may be suspended or revoked.

Travel Restrictions: A DWI conviction can prevent you from entering Canada and other countries that deny entry to individuals with criminal records.

Personal Consequences: The stress, embarrassment, and stigma of a DWI conviction can strain relationships and damage your reputation in your community.

Common Defenses to VTL § 1192.2 Charges

At the Law Offices of Matthew Cohan, we thoroughly investigate every aspect of your case to identify weaknesses in the prosecution's evidence. Common defense strategies include:

Challenging the Chemical Test Results

Breathalyzer and blood test results are not infallible. We examine:

Machine Calibration and Maintenance: Breathalyzer devices must be calibrated regularly according to strict protocols. If maintenance logs show irregularities or if calibration deadlines were missed, the results may be unreliable.

Operator Training and Certification: The officer administering the test must be properly trained and certified. Expired certifications or improper administration can invalidate results.

Observation Period Violations: Officers must observe you for at least 20 minutes before administering a breath test to ensure you haven't burped, vomited, or consumed anything that could affect the reading. Failure to follow this protocol can result in falsely elevated BAC readings.

Mouth Alcohol Contamination: Residual alcohol in your mouth from recent drinking, dental work, GERD, or acid reflux can cause inaccurately high breathalyzer readings.

Blood Test Chain of Custody: Blood samples must be properly collected, stored, preserved, and tested. Any break in the chain of custody or improper storage can compromise results.

Rising Blood Alcohol Defense: Your BAC may have been below 0.08% while you were driving but rose above that level by the time you were tested. Alcohol takes time to absorb into your bloodstream, and the delay between driving and testing can be significant.

Challenging the Traffic Stop

The Fourth Amendment protects you from unlawful searches and seizures. We examine whether:

The officer had reasonable suspicion to pull you over in the first place. Without a valid traffic violation or reasonable suspicion of criminal activity, the stop itself may be illegal.

The officer had probable cause to arrest you for DWI. Observations of impairment must be specific and articulable, not based on generalizations.

If the stop or arrest was unlawful, any evidence obtained as a result (including your BAC test) may be suppressed, potentially leading to dismissal of the charges.

Procedural and Constitutional Violations

New York has strict rules governing DWI arrests and chemical testing. Common violations include:

• Failure to properly advise you of implied consent warnings
• Administering tests without proper consent or legal justification
• Denying you the right to contact an attorney before deciding whether to take a chemical test
• Coercing or threatening you into taking a test
• Failing to provide proper medical attention if you were injured

Alternative Explanations

Many medical conditions and circumstances can mimic signs of intoxication or affect chemical test results:

• Diabetes or hypoglycemia
• Fatigue or sleep deprivation
• Neurological conditions
• Inner ear problems affecting balance
• Prescription medications
• Diet (ketogenic diets can produce false positives on breath tests)

We work with medical experts when necessary to demonstrate that factors other than alcohol may have contributed to your arrest or test results.

Protecting Your Driving Privileges

In addition to the criminal case, your license faces immediate administrative action through the DMV. We help you navigate:

DMV Refusal Hearings: If you refused a chemical test, your license can be revoked for at least one year. We represent you at DMV hearings to challenge the refusal determination.

Conditional and Hardship Licenses: We work to secure conditional licenses that allow you to drive to work, school, medical appointments, and other essential activities during your revocation period.

Ignition Interlock Device: If required, we ensure proper installation and help you understand your obligations to avoid additional violations.

VTL § 1192.2 vs. Other New York DWI Offenses

Understanding the specific charge you're facing is crucial because penalties and defenses vary:

VTL § 1192.1 (DWAI): Driving While Ability Impaired involves a BAC between 0.05% and 0.07%, or impairment by drugs. This is a traffic infraction, not a crime, with lighter penalties.

VTL § 1192.2 (Per Se DWI): BAC of 0.08% or higher. This is a misdemeanor (or felony for repeat offenses).

VTL § 1192.2-a (Aggravated DWI): BAC of 0.18% or higher. Enhanced penalties apply even for first offenses.

VTL § 1192.3 (Common Law DWI): Based on observable impairment rather than BAC. The prosecution must prove you were actually intoxicated.

VTL § 1192.4 (DWAI by Drugs): Driving while ability impaired by the use of drugs (not alcohol). Different penalties and defenses apply.

VTL § 1192.4-a (DWAI Combined Influence): Driving while impaired by the combined influence of drugs or alcohol and drugs.

VTL § 1192.2-a(b) (Leandra's Law): Operating a vehicle while intoxicated with a child passenger age 15 or younger. This is automatically a felony even for first offenses.

Prosecutors often charge multiple violations simultaneously. We analyze which charges the evidence actually supports and work to reduce or dismiss the more serious allegations.

Why Experience Matters in DWI Defense

Not all DWI attorneys are created equal. At the Law Offices of Matthew Cohan, you benefit from:

Former Prosecutor Experience: Attorney Matthew Cohan's background as a former prosecutor provides invaluable insight into how the government builds DWI cases and where vulnerabilities exist in their evidence.

Technical Knowledge: We understand the science behind breathalyzers, blood tests, and field sobriety tests. We know how these devices work, how they fail, and how to challenge their reliability in court.

Proven Track Record: We've successfully defended hundreds of DWI cases, securing dismissals, acquittals, reduced charges, and favorable plea agreements for our clients.

Aggressive Advocacy: We don't just go through the motions. We investigate thoroughly, challenge aggressively, and fight for the best possible outcome in every case.

Personalized Attention: You'll work directly with an experienced attorney who knows your case inside and out, not a junior associate or paralegal.

Take Action Now to Protect Your Future

The decisions you make immediately after a DWI arrest can determine the outcome of your case. Time is critical for several reasons:

• Evidence must be preserved before it's lost or destroyed
• Witnesses' memories fade quickly
• DMV deadlines for challenging license revocations are strict
• Early intervention can sometimes prevent charges from being filed or result in better plea offers

Don't wait. The sooner you contact an experienced DWI defense attorney, the more options we have to protect you.

Contact the Law Offices of Matthew Cohan

If you've been charged with DWI under VTL § 1192.2 or any related offense in New York, you need an attorney who knows how to fight these cases and win.

Call (516) 375-1107 now or complete our contact form below for a free, confidential consultation.

We represent clients throughout New York City, Long Island, Nassau County, Suffolk County, and surrounding areas. Don't face this alone. Let us put our experience to work for you and fight to protect your license, your record, and your future.