Only as drunk as you can prove

The Internet liked the story. Woman smashes $20,000 breathalyzer. The smashy woman from Coxsackie likely got her “aggravated DUI” dropped down to a regular DUI. Or in plain English, got her drunk driving charge dropped down to buzzed driving.

Here are the official names for three crimes in New York: driving while ability impaired, driving while intoxicated, and aggravated driving while intoxicated. Here are the plain English names: driving after drinking, driving in violation of federal funding rules, and drunk driving.

The BAC limit in New York has been .05% for many years. Might as well say it’s illegal to drive after drinking. In order to comply with federal funding rules, New York also has a crime called “driving while intoxicated” based on the federally-mandated .08% BAC. Call it buzzed driving; there was a federally-funded advertising campaign along that line a few years ago. To sort out the drunk drivers from the rest, there is a third crime based on .18% BAC. That’s the real drunk driving charge. With that much alcohol most people are clearly drunk.

The low grade crime can be proved based on officer’s observations or with a machine. It’s ability impaired or BAC of .05%. The high grade crime can only be proved with a machine. If the machine is broken it may be your lucky day.

If you’re staring at a breathalyzer, like the briefly famous defendant, you can choose between a drunk driving charge and a vandalism charge. The latter charge might be negotiable, while the former is not. There are laws against plea bargaining DUI cases.

I didn’t ask a lawyer which is worse in the Hudson Valley. Lawyers are not allowed to help people plan crimes or obstruct justice. And you won’t be able to talk to a lawyer after being arrested. Police will insist on getting the incriminating evidence first. Asking for a lawyer counts as test refusal.

If you deliberately destroy evidence, judges can consider that evidence you thought you were guilty. But there has to be some evidence of the actual crime. With no BAC measurement, there is no evidence that you were driving with a 0.18% BAC.

We see this in other driving laws as well. Drive through a speed trap with the flow of traffic and that’s a serious 21+ over the limit ticket. Spin off a curve at double the speed limit and get a ticket for speed greater than reasonable and proper. That’s a much better deal, because driving dangerously is less serious in the eyes of the law than driving with bad numbers.

These laws create a perverse incentive for all. The police officer gets more quota credit for sniping from hiding instead of watching for dangerous drivers. The driver looks for jamming equipment to turn that 76.3 mph at 960.3 feet into a “he sure looked like he was going over 55.”

And the drunk driver ends up back on the road sooner than the driver with a bad BAC number.

The opinions expressed in this post belong to the author and do not necessarily represent those of the National Motorists Association or the NMA Foundation. This content is for informational purposes and is not intended as legal advice. No representations are made regarding the accuracy of this post or the included links.

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