Per Se Intoxication in the Law

per se intoxication in the law

Most drivers accused of DWI in New York are charged with violating the state’s “per se” laws in addition to being charged with driving while intoxicated. Drivers are cited with “driving while intoxicated; per se” when their blood-alcohol level is higher than .08 percent.  It’s separate from the old common law accusation that a driver was operating a motor vehicle while impaired and/or intoxicated.

Most drivers charged with DWI believe that a breath test or blood test result of .08 percent or greater means that their case is indefensible. These drivers may ask, “Why fight my case?”  However, as with any test, blood and breath tests have great potential for error when administered incorrectly.  A New York DWI lawyer, particularly one who has advanced knowledge of standardized field sobriety tests and non-standardized field sobriety tests and breath tests, can competently attack law enforcement procedures and breath test conclusions, and get acquittals for people accused of drunk driving.


Rising Alcohol Defense: Timing is Everything

In many cases, a person under suspicion of drunk driving is tested hours after he/she was last behind the wheel of a car. In New York, the two hour rule provides that a person accused of drunk driving must generally be tested within two hours of either the time of arrest or the time of a positive breath screening test. When drivers are tested after two hours have passed, prosecutors must establish by expert evidence that blood alcohol test results are competent and reliable through a process called reverse extrapolation.

A skilled New York DWI attorney knows that a driver’s blood alcohol content (BAC) reading at the police station may be well above the driver’s BAC when he/she was behind the wheel. This all depends on how alcohol is metabolized and excreted by the driver’s body, which often causes the BAC to rise long after he or she has stopped drinking. An experienced New York DWI lawyer such as Attorney Adam D. Perlmutter, can challenge a high BAC reading with the “rising alcohol defense”.


Breath Testing: Reason to Doubt

Breath tests can be given both at a roadside and at the police precinct.  Portable Breath Test (PBT) machines are handheld devices used by police at roadside stops to establish probable cause to arrest motorists for drunk driving. This test is highly inaccurate and problematic because it does not detect mouth-alcohol, which can substantially increase the reading on a breath test.

A drunk driver who submits to a breath test in New York City is tested with the Intoxilyzer 5000EN at one of the various NYPD Precincts. This breath testing machine uses an infra-red light beam passed through a chamber containing a sample of the subject’s breath in order to determine the concentration of ethyl alcohol in that subject’s blood. However, if the Intoxilyzer 5000EN is not placed in the proper testing mode, it will not detect mouth alcohol. Mouth-alcohol generally results from fumes of alcohol being burped, belched or regurgitated form the stomach.

Search our NYPD BREATHALYZER TESTING RECORDS database to see if the machine used to test you was faulty.


Blood Tests: A Need for Precision

Blood test results can be just as unreliable as breath test. There several ways to impeach a blood test result; it depends on the particular fact pattern of your case. At the request of a police officer, certain qualified professionals may withdraw a driver’s blood. An experienced New York DWI lawyer will check the qualifications of the person who drew the blood. The blood test result can be challenged by inquiring about the type of antiseptic used to swab a person’s arm prior to the withdrawal of a blood sample. According to the New York State Department of Health Rules and Regulations, “an aqueous solution of nonvolatile antiseptic shall be used instead of alcoholic or phenol solutions. In addition, Attorney Adam D. Perlmutter will challenge the blood test results as it pertains to blood fermentation, blood test kit maintenance and chain of custody.


Have you been charged with a DWI, DWAI, or DUI in New York?

Contact us today for a free consultation: (646) 742-9800

Search our NYPD BREATHALYZER TESTING RECORDS database to see if the machine used to test you was faulty.


As you can see, there are several effective ways to challenge evidence in a per se DWI case.  Other medical conditions or improper procedures can lead with unreliable results.  Contact us to find out about the best way to fight your drunk driving case.


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