How Drunk Is Too Drunk to Drive?

  • By Thomas Corletta
  • 26 Sep, 2016

You know that driving under the influence is ill-advised and that a DWI charge can have serious consequences. But you may have trouble gauging at what point you become safe to drive after you've had a drink or two.

In this blog, we discuss New York's DWI laws, as well as the signs a blood alcohol content (BAC) may be over the legal limit and methods to sober up more effectively. Understanding this information can help you make informed, smart decisions about whether or not to get behind the wheel.

Legal BAC Limits

In New York State, you can be stopped and charged a DWI if your drinking impairs your ability to drive to a substantial extent. This is called “common law” DWI, and is based upon the officer’s observations of your driving and physical condition. However, you can also be charged with a " per se " DWI as a separate charge. A per se DWI occurs when you have a BAC at or above the legal limit. If you also display signs of impairment, this can be used against you to support the per se charge. Vice versa, the per se BAC can also be used to support the “common law” charge.

New York's BAC guidelines are as follows:

  • 0.02% for minors under age 21
  • 0.04% for drivers using a commercial license
  • 0.08% for drivers using standard licenses

If you show a BAC of 0.18% or more, law enforcement may charge you with an aggravated DWI.

Common Sense Guidelines

So how much alcohol gets you to 0.08%? First, it's important to realize that it's unwise to skirt the legal BAC limit. While 0.08% is the legal standard, you may become impaired well before you reach that BAC for “common law” purposes.

Additionally, each person absorbs alcohol differently and alcohol affects people in different ways. While you can make an educated guess on your own BAC, you cannot know the percentile for sure. Moreover, if you are an “experienced drinker” you may not exhibit noticeable signs of impairment and still have a high BAC.

Your BAC depends on what you drink over what period of time, how much you drink, how long it's been since your last drink, and how much you weigh, your body chemistry, and what you have had to eat. This list is not exclusive. Moreover, if you take prescription medication or have other medical factors, you may show greater signs of impairment. Driving under the influence of prescription medication carries the same penalties as DWI.

If you notice any of the following, you may consider yourself too impaired to drive:

  • A "buzzed" feeling
  • Consumption of two or more drinks within the last two hours
  • Difficulty speaking clearly
  • Lack of balance or coordination
  • Sleepiness or difficulty keeping your eyes open

Even if you don't notice any of these signs, you should use some of the following tips before getting behind the wheel.

Tips to Sober Up

While there's no way to sober up immediately, you can expedite the process. As soon as you realize you need to sober up, stop drinking. Then, take the following action:

  • Drink water - while you are drinking to speed up absorption of alcohol and elimination from your body.
  • Eat - Carb-heavy meals can help absorb some of the alcohol in your system, making you feel more alert.
  • Sleep - If you have a place to sleep, rest is the best way to sober up. Plan to sleep for at least five to seven hours before attempting to drive. Do not sleep in your car. You can still be charged with DWI if found sleeping in your car with the keys in the ignition.
  • Wait - Your BAC lowers approximately 0.015% each hour after you stop drinking. Give yourself at least an hour per drink .

While none of these methods eliminates all alcohol in your system, these steps can help you be alert enough to evaluate your ability to drive more accurately.

Remember, if you feel at all doubtful about your ability to drive, find another way home. Call a cab or friend or family member when in doubt. It is cheaper than paying a lawyer, fines, and related fees.

If you have questions about how New York's DWI laws apply to you or you have been involved in a DWI incident, contact Thomas A. Corletta, Attorney and Counselor at Law for an expert perspective.

By Thomas Corletta 17 Apr, 2017

Being charged with one DWI is serious enough. But if this is your second, third, or fourth DWI, the situation becomes more serious, because this is a predicate-type offense. Subsequent offenses, if committed within certain time frames, carry enhanced punishment.

New York State DMV regulations, enacted in 2012, make penalties for multiple DWIs even harsher. If you get a DWI, your punishment can be much greater if you've had other DWIs in the past five, ten, or now, even twenty-five years.

Here's what you need to know about getting multiple DWIs and how a lawyer can help you.

By Thomas Corletta 28 Feb, 2017

Countless breathalyzer tests (this is now a generic term; the original Breathalyzer was a device that used wet chemicals; most modern breath testing devices use infrared or electrochemical fuel cell technology) are administered on a daily basis across the United States. DWI is the only crime where a person can be convicted by machine. Unfortunately for some, breathalyzer tests are not always reliable indicators of intoxication or impairment.

There are several reasons why a breathalyzer test could be inaccurate and result in an unjust conviction. Many of these reasons are dependent solely upon factors beyond a person's control, including illness and unusual physiological or biological characteristics. Below are basic issues you should be aware of, if you are arrested for Driving While Intoxicated.

Diabetes or Other Illness

A common, chronic medical condition that can cause inaccurate breathalyzer readings is diabetes. Since diabetes affects approximately one in five American drivers, this is a particularly relevant concern for many individuals arrested for drunk driving.

One of the classic diabetic responses to blood sugar dysfunction is known as ketoacidosis. Whenever ketoacidosis occurs, the body produces excessive amounts of acetone, which is released into the respiratory system. Acetone is detected by infrared breath testing machines on the same wavelength as alcohol.

While acetone is not alcohol nor is it intoxicating, breathalyzers can detect and misinterpret this substance as alcohol. That means an individual who has been arrested for driving while intoxicated may have a false positive. However, most modern breath testing devices have acetone detectors which if functioning properly, will abort the test if acetone is detected. However, sometimes these detectors may not function properly. It is therefore usually wise not to administer a breath test to a diabetic, and instead perform a blood test.

Also, physical symptoms of diabetic attack are similar to those exhibited by someone who is intoxicated, such as slurred speech, delayed reaction times, and confused or disoriented behavior. This places a diabetic person in a very complicated situation if suspected of DWI . Obviously, diabetics should avoid drinking and driving at all costs.

Besides diabetes, other less-serious illnesses can generate false positives on a breathalyzer test. For example, heartburn, acid reflux, or GERD are also culprits in creating false positives on breathalyzer tests, as regurgitation of stomach contents may lead to high mouth alcohol. Breath testing devices are supposed to test deep lung (alveolar) air, and can be skewed by high mouth alcohol. However, most breath testing devices have mouth alcohol detectors which will abort the test if mouth alcohol is detected. The purpose of the 20 minute “observation period” prior to administration of the test is to make sure the subject doesn’t burp or regurgitate. How close the subject was watched can also be an issue as to the accuracy of the test.

Temporary Metabolic Changes

Besides diabetes, temporary, relatively minor changes in metabolism can artificially elevate blood alcohol levels. The consumption of products containing sugars and yeast can generate alcohol in a chemical process known as fermentation, even inside the mouth. Such products are common and include bread products and desserts.

In addition to what you eat, what you don't eat can also cause false positives for individuals taking breathalyzer tests. A process known as ketosis occurs whenever the human body metabolizes fat reserves for energy. As a byproduct of ketosis, isopropyl alcohol is created and can be mistaken by breath testing devices as ethyl alcohol.

Elevated Body Temperature

Breathalyzers are designed to test for the presence of chemicals in the methyl group, including ethyl alcohol, and their accuracy depends on the subject having a specific body temperature. An assumption is made that tested persons have the same body temperature as the human mouth temperature. Simulator solutions used as a control are heated to precisely 34 Degrees Centigrade, which is the human mouth temperature. However, as part of the testing procedure, the subject’s temperature is never tested.

Instead, healthy individuals can possess average temperature readings ranging from 97 degrees through 99 degrees Fahrenheit. If your average body temperature is higher than the universally accepted norm of 98.6 degrees Fahrenheit, this may skew your results.

In New Jersey, the State Supreme Court has recently recommended that a temperature detector be installed on breath testing devices in that state, in order to either adjust or invalidate chemical test results.

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It is also important to understand that all chemical breath testing devices operate on the assumption, since they provide a Blood Alcohol Reading ( BAC ), that there is the same amount of alcohol found in 2100 cc of deep lung air as there is in 1 ml of whole blood. This is the chemical principle known as Henry’s Law. Chemical breath testing devices take a sample of deep lung air, and through a chemical conversion formula, convert the amount of alcohol found in the breath sample to a blood alcohol reading. Police officers will readily admit that a chemical breath test is an indirect test of blood alcohol content, by obtaining a sample of the subject’s breath .

It is well established that individual breath-blood ratios vary from person to person based upon age, sex, body chemistry, etc. There is no way to know the individual ratio of each person tested.

If you find yourself accused of driving while intoxicated, and you suspect that your physical health or body attributes may have influenced the test, then you should seek legal help from a qualified attorney . He or she can provide you with guidance and provide the tools you need to defend yourself on the charge.

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By Thomas Corletta 10 Feb, 2017

When you get your driver's license in New York, you give “implied consent”  to a chemical test of breath, blood, urine, or saliva, if a police officer has reasonable cause to believe you are Driving While Intoxicated. If you refuse to submit after being warned in clear and unequivocal language that your license is subject to immediate suspension and subsequent revocation as prescribed by law, you can, after a hearing, lose your license for a minimum of 1 year; even if ultimately acquitted of the DWI charge.

It may be possible to avoid these consequences, if you have a valid defense to the refusal . Here are three valid defenses to a refusal.

A Medical Condition Hinders Your Ability to Give a Breath Sample

Not everyone has the lung capacity to properly blow into a breath testing device. These devices requires a certain volume of deep lung air for proper testing and are based on conversion ratios that depend on getting a sufficient sample. There are any number of medical conditions that can prevent a person from being able to provide the deep lung air needed to accurately measure blood alcohol levels. Breath testing devices operate on scientific principles that convert the amount of alcohol found in a specific amount of deep lung air into a blood alcohol reading.

For example, lung function often declines in patients with asthma . People with severe COPD typically only have about 30 percent  lung capacity. Both of these conditions can make it extremely difficult for a person to blow into the machine long or hard enough to get a reading. Smokers may have emphysema, which is another condition that can hinder giving a breath sample.

To use this defense in court or at a DMV administrative hearing, you must produce evidence supporting your claim. This will usually require testimony from a medical professional; either a doctor or a nurse familiar with your condition. Doctor’s letters are hearsay, and are inadmissible in Court proceedings.

The Officer Didn't Follow the Rules

Police must follow a specific procedure when requesting people to take breath, blood, or urine tests. Most importantly, the officer must advise the person, in clear and unequivocal language, what will happen if they refuse. The Breath Test Operator ( BTO ) should give clear instructions on how to blow, and give the person adequate opportunity to comply and complete the test. Most machines are automated, and only require the operator to push a button to initiate the test. However, the sample will be rejected if sufficient.

Also, if the officer doesn't tell the person his or her license can be suspended and/or subsequently revoked and that the refusal can be used against them in Court, the defendant can argue he or she wasn't provided with adequate information to make an informed decision about taking a breath test.

The Officer Didn’t Allow You to Call Your Lawyer

Where some officers make their biggest mistake, is not in giving defendants access to counsel, if requested. In New York, the law is clear that if a motorist is under arrest for DWI and specifically requests to speak to an attorney before deciding whether to take a breath test, he/she must be offered access to counsel, through use of a phone and/or the phonebook, in order to seek legal advice, as long as the test is not unduly delayed. Restricting access to counsel by not allowing access to a phone, or by contacting a lawyer on the client's behalf instead of letting the client call themselves, or by denying access in any way, will usually lead to suppression of the refusal, and an inability by police to use the refusal against you.  Always ask to call a lawyer in this situation. You are entitled to do so before making this important decision.

Defeating a charge for refusing to submit to a breathalyzer test can be challenging, but it is possible defend a refusal if you have a valid reason. You should never waive a DMV Refusal Hearing. Contact our office  as soon as possible so we can review your case and suggest the best course of action to take to get the best possible outcome.

By Thomas Corletta 17 Jan, 2017

If you’ve been charged with a crime you believe you did not commit, don’t rely on your own judgement to resolve the issue. You may think you’re not guilty, or deserve consideration for a lesser charge, based upon your good record. You may think this is obvious, and the Court will agree once you have your day in court. You may even attempt to contact the Prosecutor to “make things right”, or explain yourself.

However, your actions (and lack of action) may actually damage your case if you do any of the above. Instead, hire a criminal defense attorney immediately and follow his or her advice. Not only will your attorney help you defend yourself, but it may also be possible for your attorney to have your charge dismissed. There are many avenues of defense; including technical problems with proof, mitigating circumstances, etc.

Here are three more important reasons to hire an attorney as soon as possible after being charged with a misdemeanor or felony.

By Thomas Corletta 28 Oct, 2016

          Driving While Intoxicated or Impaired refers to operating a vehicle while your mental or physical ability is substantially affected by drugs or alcohol, or a combination of the two. Certain states have zero-tolerance laws, meaning if you drive with any amount of alcohol or drugs in your system, you may be charged with an alcohol or drug-related driving offense.

By Thomas Corletta 26 Sep, 2016

You know that driving under the influence is ill-advised and that a DWI charge can have serious consequences. But you may have trouble gauging at what point you become safe to drive after you've had a drink or two.

In this blog, we discuss New York's DWI laws, as well as the signs a blood alcohol content (BAC) may be over the legal limit and methods to sober up more effectively. Understanding this information can help you make informed, smart decisions about whether or not to get behind the wheel.

Legal BAC Limits

In New York State, you can be stopped and charged a DWI if your drinking impairs your ability to drive to a substantial extent. This is called “common law” DWI, and is based upon the officer’s observations of your driving and physical condition. However, you can also be charged with a " per se " DWI as a separate charge. A per se DWI occurs when you have a BAC at or above the legal limit. If you also display signs of impairment, this can be used against you to support the per se charge. Vice versa, the per se BAC can also be used to support the “common law” charge.

New York's BAC guidelines are as follows:

  • 0.02% for minors under age 21
  • 0.04% for drivers using a commercial license
  • 0.08% for drivers using standard licenses

If you show a BAC of 0.18% or more, law enforcement may charge you with an aggravated DWI.

Common Sense Guidelines

So how much alcohol gets you to 0.08%? First, it's important to realize that it's unwise to skirt the legal BAC limit. While 0.08% is the legal standard, you may become impaired well before you reach that BAC for “common law” purposes.

Additionally, each person absorbs alcohol differently and alcohol affects people in different ways. While you can make an educated guess on your own BAC, you cannot know the percentile for sure. Moreover, if you are an “experienced drinker” you may not exhibit noticeable signs of impairment and still have a high BAC.

Your BAC depends on what you drink over what period of time, how much you drink, how long it's been since your last drink, and how much you weigh, your body chemistry, and what you have had to eat. This list is not exclusive. Moreover, if you take prescription medication or have other medical factors, you may show greater signs of impairment. Driving under the influence of prescription medication carries the same penalties as DWI.

If you notice any of the following, you may consider yourself too impaired to drive:

  • A "buzzed" feeling
  • Consumption of two or more drinks within the last two hours
  • Difficulty speaking clearly
  • Lack of balance or coordination
  • Sleepiness or difficulty keeping your eyes open

Even if you don't notice any of these signs, you should use some of the following tips before getting behind the wheel.

Tips to Sober Up

While there's no way to sober up immediately, you can expedite the process. As soon as you realize you need to sober up, stop drinking. Then, take the following action:

  • Drink water - while you are drinking to speed up absorption of alcohol and elimination from your body.
  • Eat - Carb-heavy meals can help absorb some of the alcohol in your system, making you feel more alert.
  • Sleep - If you have a place to sleep, rest is the best way to sober up. Plan to sleep for at least five to seven hours before attempting to drive. Do not sleep in your car. You can still be charged with DWI if found sleeping in your car with the keys in the ignition.
  • Wait - Your BAC lowers approximately 0.015% each hour after you stop drinking. Give yourself at least an hour per drink .

While none of these methods eliminates all alcohol in your system, these steps can help you be alert enough to evaluate your ability to drive more accurately.

Remember, if you feel at all doubtful about your ability to drive, find another way home. Call a cab or friend or family member when in doubt. It is cheaper than paying a lawyer, fines, and related fees.

If you have questions about how New York's DWI laws apply to you or you have been involved in a DWI incident, contact Thomas A. Corletta, Attorney and Counselor at Law for an expert perspective.

By Thomas Corletta 09 Aug, 2016

While it might seem counter intuitive for DWI lawyers to explain how to avoid DWIs, it's our goal to keep people out of harm's way. If you don't drink and drive, you don't risk getting arrested, crashing your vehicle, or injuring yourself and others. You also don't risk spending money on bail, court fees, legal fees and fines, alcohol education classes, Interlock installation and maintenance, and a new driver's license.

To prevent you from drinking too much and driving, we've outline a series of tips and resources that will help you catch a ride home after a fun night in Rochester. Read on to learn more.


1.) Limit Yourself to Two Drinks, Eat Food, and Drink Water

Our body burns off about 0.015 Blood Alcohol Concentration (BAC) per hour. Our ability to absorb alcohol varies according to our size, sex, age, and metabolism. You can see how much your body burns off by checking Aware Awake Alive's BAC Calculator, which compares how much you weigh to how many drinks you've had, and provides you with an estimated BAC. However, this is only an estimate. Alcohol affects different people in different ways, especially if you do not consume alcohol often.

The legal limit for driving while intoxicated is 0.08 BAC, but you may experience impaired judgment at an 0.06 BAC. In order to ensure you stay unimpaired and able to drive, you must limit your intake. Try sticking to two drinks (each drink being 1.25 oz. of liquor, 12 oz. of beer, or 5 oz. of wine) over the course of three to four hours. Drink water in-between beverages, and eat food to help your body absorb alcohol. This is not guaranteed, but is a more responsible way to consume alcohol.


2.) Find Out Where Roadblocks and Checkpoints Are

If you have limited your alcohol intake, drunk water, and eaten food, you may not experience any impairment. Should you decide to drive, check Roadblock.org's Rochester page or DUIBlock.com's  New York page for information about Driving While Intoxicated checkpoints. However, these sources may not include all checkpoints.

At DUI checkpoints, police will ask whether you've been drinking. If the answer is yes, you may be detained for further questioning and/or testing, despite having acted responsibly.


3.) Get a Designated Driver

In advance, ask a friend you're going out with to be the designated driver. Often friends will share this duty, rotating who is the designated driver within their social circle each weekend.

That being said, you might be attending an event solo and be unable to find someone to pick you up after you've had one too many. Websites and apps like StearClear allow you to schedule a driver to pick you up and bring you home in your car, meaning you don't need to take a cab back into town the following morning to get your vehicle.

The Designated Drivers of Rochester also provide professional drivers who will pick you up and drop you off at home in your own car.


4.) Use Regional Transit Service or Rochester Cab Taxi Service

Rochester doesn't have Lyft or Uber. However, we do have year-round, round-the-clock affordable cabs from the Rochester Cab Taxi Service .

We also have an extensive, county-wide public transportation system through the Regional Transit Service, which offers maps and bus schedules online , although they probably won’t be available at late hours. You should always have someone (friend, relative) who you feel comfortable to call if you can’t drive.

It's easy to make poor decisions after a few drinks. Getting behind the wheel doesn't seem like a big deal, and driving home may seem doable at the time. Unfortunately, so many people turn that ignition key, drive away while intoxicated, and spend the night in jail instead of their bed. To avoid this rather expensive and uncomfortable mistake, follow our tips for DWI prevention.

If you've been arrested for driving while intoxicated, don't distress. Contact Thomas A Corletta, Attorney & Counselor at Law, to get experienced, knowledgeable representation for your DWI case.

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