Driving While Intoxicated
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New York law prohibits operation of a motor vehicle while one's ability to do
so is, to any extent, impaired by alcohol or drugs. A person is deemed intoxicated
when he has .08 percent or more by weight of alcohol in his blood, or upon the
subjective observations of a police officer (such as erratic driving, watery,
bloodshot eyes, unsteadiness on feet). Operation means sitting behind the wheel
of a motor vehicle when the vehicle is moving or the engine is running, with
the intent to move the vehicle. Operation can be proven by circumstantial evidence
such as a person found unconscious or sleeping behind the wheel.
Intoxication Tests
There are three types of tests an officer will usually seek to perform on a person
suspected of driving while intoxicated: a field sobriety test, a screening test,
and a chemical test. Field sobriety tests (finger-to-nose, one-leg stand, walk
and turn, and gaze nystagmus) are premised on the fact that intoxication affects
physical coordination and mental capacity. A screening test (Alco Sensor) is
a portable breath test designed only to determine the presence of alcohol in
a person's blood but not the concentration. Chemical tests (Breathalyzer, blood,
urine) are designed to determine the percentage of alcohol in a person's blood.
The Breathalyzer is by far the most common chemical test administered and has
been recognized by New York courts as scientifically reliable. Nevertheless,
how a Breathalyzer test is administered, as well as the calibration and maintenance
of the Breathalyzer machine itself, can substantially affect the results.
A chemical test must be administered within two hours of either the time of arrest
or the time of a positive screening test, whichever is later. Although
the law does not require a suspect to submit to a field sobriety test, drivers
in New York are deemed to have given consent to screening and chemical tests.
A driver may still refuse to take a chemical test but may face a mandatory license
revocation for six months as a consequence.
Drinking Driver Program
Dispositions for drunk driving cases usually include participation in the New
York State Drinking Driver Program. The program consists of a series of seven
classes totaling a minimum of fifteen hours which are designed to deter future
violations through education. The program provides the violator a conditional
license to travel to and from work, school, medical exams, and other essential
activities. Once a person has participated in the program, he may not do so again
for a period of five years.
Vehicle Forfeiture
In 1999, the New York City Police Department began commencing forfeiture actions
of the automobiles driven by people accused of driving while intoxicated. The
basis of this policy is that the vehicle is the instrumentality of a crime and
is, therefore, subject to forfeiture under the New York City Administrative Code.
A forfeiture action is a civil lawsuit brought by the Police Department, and
is a completely separate proceeding from the underlying criminal case which is
prosecuted by the District Attorney. The New York City Police Department's Forfeiture
Initiative has been upheld as constitutional despite challenges that the Initiative
was prohibited under state law, that forfeiture constituted an excessive fine
and that forfeiture violated due process requirements for taking property.
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