An Introduction to the Issue of Drunk Driving

Drunk driving is wrong, it's irresponsible, and does cause a senseless waste of lives. All but 2 states (Massachusetts and South Carolina) and the District of Columbia have per Se laws defining it as a crime to drive with a blood alcohol concentration (BAC) at or above a proscribed level, usually 0.10 percent. Fourteen states mandate jail or community service after first convictions. License suspension or another penalty may result from violations of BAC thresholds that apply only too young drivers in 44 jurisdictions. These underage BAC laws apply to drivers younger than 21 except in Georgia, Louisiana, Vermont (younger than 18 in these states), and Wisconsin (younger than 19).

In New York the BAC defined as illegal Per Se: all drivers is 0.10; there are special provisions for young divers: the BAC level is 0.02 (eff. 11/1/96). Suspension of your license in New York lasts until prosecution is complete. New York is the first municipality in the nation to seize the vehicles of motorists arrested for driving while intoxicated.

Under New York City's new drunken driving policy: motorists with a blood alcohol level of .10 percent the legal limit or higher will have their vehicles seized on the spot; while the motorist faces prosecution in criminal court, the vehicle seizure will be part of a separate proceeding in civil court under state forfeiture laws; because civil proceedings require only a preponderance of evidence for guilt rather than guilt beyond a reasonable doubt motorists acquitted of drunken driving in criminal court may still lose their cars in civil court; vehicles belonging to banks or car rental agencies can be returned but the businesses will be responsible for paying storage fees; the vehicles of motorists arrested on the lesser charge of driving while impaired with a blood alcohol level of .06 to .09 percent will not be seized.

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There are six offences in drinking and driving. They are "driving while impaired", having care and control of a vehicle while impaired", "driving while exceeding 80 m.g.", " having care and control of a vehicle while exceeding 80 m.g.", "refusing to give a breath sample", and "refusing to submit to a roadside screen test. These are all Criminal Code Offences. The sentence for "refusing to give a breath sample" is usually higher than either of the "exceeding 80 m.g." offences. Consequently it is usually easier in the long run for you to give a breath sample if asked. If, for example you are convicted of "Refusing to give a breath sample" for the first time, but was earlier convicted of "Driving while impaired", your conviction for "Refusing" will count as a second conviction, not a first, and will receive the stiffer penalty for second offences. For the first offence here is the penalty and the defenses you can make.

Driving a vehicle while your ability to drive is impaired by alcohol or drugs is one of the offences. Evidence of your condition can be used to convict you. This can include evidence of your general conduct, speech, and ability to walk a straight line or pick up objects. The penalty of the first offences is a fine of $50.00 to $2000.00 and/or imprisonment of up to six months and automatic suspension of license for 3 months. The second offence penalty is imprisonment for 14 days to 1 year and automatic suspension of license for 6 months. The third offence penalty is imprisonment 2 for 3 months to 2 years (or more) and automatic suspension of license for six months. These penalties are the same for the following offences.

Having Care and Control of a Motor Vehicle while Impaired" is another offence. Having care and control of a vehicle does not require that you be driving it. Occupying the driver's seat, even if you did not have the keys, is sufficient. Walking towards the car with the keys could be sufficient. Some defenses are you were not impaired, or you did not have care and control because you were not in the driver's seat, did not have the keys, etc. It is not a defense that you registered below 80 m.g. on the Breathalyzer test. Having care and control depends on all circumstances. "Driving While Exceeding 80 m.g. is the next offence. Driving a vehicle, having consumed alcohol in such a quantity that the proportion of alcohol in your blood exceeds 80 milligrams of alcohol in 100 milliliters of blood. Some defenses are the test was administered improperly, or the Breathalyzer machine was not functioning properly.

Having Care and control of a Motor Vehicle while Exceeding 80 m.g." offence means having care and control of a vehicle whether it is in motion or not, having consumed alcohol in such a quantity that the proportion of alcohol in your blood exceeds 80 milligrams of alcohol in 100 milliliters of blood. The defenses are the test was administered improperly, or the Breathalyzer machine was not functioning properly.

You will then be asked to provide two breath samples, about fifteen minutes apart. Normally they will take the result of the lowest result and use it as evidence against you. "Refusing to Give a Breath Sample" means refusing without a reasonable excuse to give a sample or refusing without a reasonable excuse to accompany a policy officer, when demanded by the police officer. Before demanding by the police officer, he must have reasonable and probable grounds to believe that you are committing or at any time in the preceding two hours have committed, one of the offences of driving or having care and control of a vehicle while impaired or while having a blood alcohol level in excess of 80 m.g.

You can refuse to give a breath sample until you have communicated in private with your lawyer even if this takes you beyond the two hour period, unless it is shown that your request for a lawyer was not genuine and merely to delay the testing. The test can be done after the two-hour period, but a technician must testify in court as to what your blood alcohol would have been in the two-hour period. You cannot refuse to accompany the officer until you see your lawyer. You can argue that the officer didn't have reasonable and probable grounds to suspect you, but this however depends on the circumstances.

"Refusing to submit to a Roadside Screening Test" is the last offence. When you commit this offence you are refusing without reasonable excuse to give a breath sample for a roadside screening device, or refusing without reasonable excuse to accompany a police officer for the purposes of giving such a sample, when demanded by an officer. Before the officer demands a Breathalyzer he must reasonably suspect that you have alcohol in your blood.

The maximum penalties for impaired driving causing bodily harm to someone is up to 10 years in prison and up to a 10 year prohibition from driving. The maximum penalty for impaired driving causing death is up to 14 years and a 10-year prohibition from driving. The maximum penalty for manslaughter and criminal negligence causing death is up to life in prison and up to a lifetime prohibition from driving.

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