The most crucial element of a DWI charge is usually proving intoxication or impairment of the driver at the time of the incident. There are two general ways or proving intoxication: a chemical test (per se) or a conclusion based upon a the totality of the circumstances.
A police officer making arrest for DWI will offer the driver a chemical test. A chemical test indicating a Blood Alcohol Content of over .08 will result in a charge of dwi per se under VTL § 1192(2). A chemical test indicating a Blood Alcohol Content of over .18 will result in a charge of aggravated DWI per se under VTL § 1192(2-a).
While a high BAC reading may appear to be conclusive evidence, often times results of chemical tests are not as reliable as they appear. A skilled DWI lawyer can identify all of the reasons why your test results are not accurate.
More information on the Per Se Charge.
If a chemical test is not administered, the prosecutor will have to rely on the police officer’s observations, as well as any evidence of the driver’s behavior at the time of arrest. All of these observations and other evidence surrounding the arrest make up the “totality of the circumstances.” A prosecutor will have to show that based upon a totality of the circumstances the driver was intoxicated or impaired. This evidence will all be highly subjective and carefully selected by the prosecutor to paint a particular picture for the jury in order for them to reach the conclusion that you were intoxicated or impaired. An experience DWI lawyer can identify to the jury all of the reasons they should doubt that conclusion.
More Information on Proving Intoxication or Impairment by a Totality of the Circumstances.
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