Increasing BAC Levels

A trend evident to both judges and lawyers is a shift toward much higher blood alcohol content (BAC) levels in DWI cases. During my initial training on prosecuting alcohol related offense at the New York State Police Academy, we were told that a BAC of over 2.0 was considered rare, and that if the BAC was 3.0 or higher the subject would likely be unconscious or close to it. However, over the last five years I have observed that the BAC levels in DWI cases are climbing ever higher.

Indeed, there was a time when two or more years would pass before I would see a DWI client with a BAC over 2.0— in the first quarter of 2015 I have had four such cases. A prevailing theory is that it is easier to get intoxicated these days, given the types of drinks that people are now consuming—i.e., fruity drinks in which the flavor of alcohol is minimized. For example, someone who would never drink whisky to the point of reaching a BAC of 2.4 may have no problem drinking several fruity/slushy cocktails with high alcohol content, or a number of caffeinated alcoholic drinks, ultimately achieving the same result.

The New York Aggravated DWI Statute

The aforementioned trend in NY State towards higher BAC levels is unfortunate for many reasons, including the fact that the Aggravated DWI statute is vigorously enforced. Any person in New York who is alleged to have a BAC of .18 or higher is charged with a misdemeanor Aggravated Driving While Intoxicated; and the statute requires that a person charged with an Aggravated DWI must plead to a misdemeanor level offense—in other words, they are not eligible for a reduction to the traffic violation of DWAI typical in many cases, unless the Judge and the prosecutor put on the record the reasons for the reduction to a level lower than a misdemeanor.

It should also be noted that the penalties for Aggravated DWI are much more serious than they were in the past. The penalties range from $1,000 to $2,500 in fines; a maximum jail sentence of one year; and a mandatory driver’s license suspension of one year. Those who are predisposed to alcohol abuse should also be aware that a second Aggravated DWI within a ten-year period will automatically be charged as a felony; they may face a state prison sentence of up to four years; and their license will be revoked for a minimum of eighteen months. An emerging trend in many counties is the refusal to plea bargain with those charged with Aggravated DWI. However, the situation differs from county to county. If there was no accident and it is a first time offense, many District Attorney’s offices will still allow the defendant to obtain a reduction from an Aggravated DWI charge to a simple Driving While Ability Impaired, often after an alcohol evaluation and any recommended treatment.

I have also found that judges and Assistant DAs will treat someone with a BAC level higher than .18 quite differently at arraignment than someone with a lower BAC level—i.e., they may give the driver a longer lecture and/or require bail because the driver is being charged with a more serious offense; and they are often less likely to consent to a hardship driving privilege that allows the defendant to drive during the pendency of the case. In many of the upstate counties, from Albany to Buffalo, the DA’s offices are setting their own BAC standard for a cutoff point at which they will not allow a negotiation of a high BAC DWI charge down to an DWAI charge. For instance, in Monroe County if a driver has a BAC of .11, they are almost always offered a misdemeanor level offer; the DA’s office in that county has essentially lowered the point at which a defendant must plead to a misdemeanor level offense. I believe that the lowering of the BAC cutoff point at which the DA will choose to offer a misdemeanor resolution instead of a violation level offense will continue.

I have also found that the Aggravated DWI statute is affecting the decisions of those professionals who provide alcohol evaluations. It seems that when an individual is charged with Aggravated DWI the evaluator is more likely to make assumptions about the driver’s alcohol habits; often that assumption is that the instant matter is not an isolated incident and that the high BAC must be an indication of an alcohol abuse problem.

Article adapted from partner David C. Bruffett's chapter in "Inside the Minds: Strategies for Defending DWI Cases in New York, 2015 ed. published by Aspatore Books, A Thomson Reuters business.