Can I be Arrested for a DWI in New York if I Blow Below the Limit?

One of the most common methods used by law enforcement when determining whether a person is intoxicated is a breathalyzer test. In New York, a person can be arrested for driving while intoxicated (DWI) if the results of this test demonstrate that he or she has a Blood Alcohol Concentration (BAC) of .08 percent or more. However, police officers can take other evidence into consideration after pulling someone over, including observations of slurred speech, an unsteady gait, or an odor of alcohol. This means that even if a driver blows below the legal limit of .08, he or she can still be found guilty of driving while under the influence.

Arrested Even After Passing a Breathalyzer

Signs of Intoxication

Drivers who have a BAC of .08 percent or more are considered per se intoxicated. This means that prosecutors are not required to present any other evidence to prove that the driver was impaired at the time of the arrest. However, a person can still be charged with a DWI even if he or she had a BAC of less than the legal limit. This is because law enforcement officers are permitted to arrest someone for intoxication based on a totality of the circumstances test, which means that the officers can take other indicia of intoxication into account, such as visible and behavioral evidence of alcohol consumption. As a result, an officer can arrest a driver for some or all of the following reasons:

  • Watery or bloodshot eyes;
  • Slurred speech;
  • Unsteady gait; and
  • An open container in or around the vehicle.

Failing sobriety tests can also constitute sufficient evidence for a police officer to arrest someone for driving while intoxicated. These tests could include:

  • The one leg test, in which an officer asks a driver to stand on one leg while holding his or her other foot about six inches off of the ground while counting to 20 or 30;
  • The horizontal gaze nystagmus test, which requires a person to follow either a pen or a finger while the officer monitors his or her vision; and
  • The walk and turn test, in which the officer asks the driver to walk a certain number of steps in a line and then turn around and walk the same distance back.

Zero Tolerance

In New York, drivers under the age of 21 years old who are pulled over for driving while intoxicated can be arrested for and charged with a DWI even if they blew under the legal limit. This is because according to the zero tolerance law, drivers under the legal drinking age who have a BAC of at least .02 percent, but lower than .08 percent can be charged with driving while having consumed alcohol or driving while the ability is impaired by alcohol, which is punishable by the loss of the driver’s license.

Contact an Experienced DWI Attorney

If you were recently arrested for driving while intoxicated, please call the Law Offices of George Vomvolakis at 212-682-0700 to speak with an experienced DWI attorney who can help explain your legal options.