- Law Office of Rochelle S. Berliner
- Criminal Defense
- Driving While Intoxicated (DWI)
- DWI Per Se
Driving While Intoxicated (DWI) Per Se (.08 BAC)
If you were arrested for driving while intoxicated with a breath test or blood test reading of 0.08 or above in Queens or New York City, called "DWI per se," then contact Rochelle Berliner for a free consultation.
Queens Per Se DWI Lawyer
During the consultation Ms. Berliner can explain the charge against you, possible defenses, and what you should do now to protect your privilege to drive. Call 718-261-5600 to have the Law Office of Rochelle S. Berliner review your case during a free, confidential consultation.
- Statutory Language of Section 1192(2)
- Jury Instructions for Section 1192(2)
- Defenses to the Breath Test Case
The statutory language for Driving While Impaired Per Se is found at Section 1192(2) which reads as follows:
2. Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .08 of one percentum 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 section eleven hundred ninety-four of this article.
If the chemical test reading is at 0.18 or over then the person will be charged with Aggravated DWI Per Se 0.18 or above under Section 1192(2-a). The statutory language for that offense reads as follows:
2-a. Aggravated driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva made pursuant to the provisions of section eleven hundred ninety-four of this article.
Per se comes from a Latin phrase meaning “by itself.” So the chemical test result, by itself, can operate as an irrebuttable presumption that the defendant is guilty of “driving while intoxicated per se” .08 or more of one percentum by weight of alcohol in his blood or breath.
One of the best ways for a lay person to understand any criminal offense is to read the jury instructions. The jury instruction for Section 1192(2) reads as follows:
Under our law, evidence that the defendant operated a motor vehicle, and that there after the defendant had .08 of one percentum or more by weight of alcohol in his or her blood permits, but does not require, the inference that, at the time of the operation of the motor vehicle, the defendant had .08 of one percentum or more by weight of alcohol in his or her blood.
In deciding whether to draw that inference you may consider the results of any test given to determine the alcohol content of defendant’s blood.
If you were charged with having a breath test reading over .08 then you should know that there are many defenses that can be raised in your case. The breath test machine can return an inaccurate result for a number of reasons including:
- The operator or maintenance officer did not comply with all of the rules for operating the breath test machine;
- The machine malfunctioned;
- Residual mouth alcohol affected the reading;
- Interfering substances other than alcohol affected the reading;
- Radio frequency interference (RFI) inflated the reading.
Finding a New York Attorney for DWI Per Se .08
If you were charged with DWI Per Se for a breath or blood test over 0.08 then contact a Queens criminal defense lawyer at the Law Office of Rochelle S. Berliner. Ms. Berliner is experienced in aggressively fighting DWI cases. She knows how to attack problems with the breathalyzer or blood test results.
Call 718-261-5600 or submit an online form today to receive a compelte evaluation of your case during a completely free initial consultation.
Rochelle Berliner grew up in Queens, NY. She started New York Law School in January 1989 and graduated in June 1991. Immediately after law school, she started working at the New York County District Attorney’s Office, where she stayed for approximately 14 years...
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