What Is Blood Alcohol Content?
Blood Alcohol Content, or BAC, is a common measurement of alcohol intoxication for legal purposes. BAC is used to establish at what level a driver is considered impaired and subject to arrest for driving while intoxicated (DWI) or driving under the influence (DUI).
BAC is measured as a percentage of alcohol in your blood. The general formula used to determine BAC from the level of alcohol in the breath is:
BAC = Alcohol in Breath × 2100
By using this formula, a 0.08% BAC, the legal limit for BAC in many states, is determined to equal 0 . 0000382 alcohol on average in the blood.
The concept of BAC can be traced back to the 1890s when the first alcohol breath test appeared. It wasn’t until 1960 that it became legal to use BAC as the primary measure of alcohol intoxication.
Measurements of BAC are typically made by taking a person’s breath or blood. Breathalyzers are one of the most common types of modern BAC testing equipment, but there are many others on the market.
Typically, the higher a person’s BAC, the more laws are broken and the more severe the punishment for being caught under the influence.
Legal Limits for BAC in New York
The New York State Department of Motor Vehicles outlines four different legal limits of BAC for operating a vehicle in the state of New York:
.08 percent or higher—the legal limit for an individual age 21 or older to operate a vehicle in New York
.04 percent or higher—the legal limit for a person operating a commercial motor vehicle
.02 percent or higher—the legal limit for a person age 21 or older who is operating a taxi, for-hire, or ride-sharing vehicle
.02 percent or higher—the legal limit for a driver under age 21 who is found to be operating a vehicle while having consumed alcohol or drugs
In addition to the above standard legal limits, New York Bas has implemented enhanced penalties for drivers with a BAC of .18 percent or above. Enhanced penalties for aggravated driving while intoxicated (or "aggravated DWI") include—but are not limited to—a one-year suspension of driving privileges, increased fines and a minimum of 18 days in jail.
Testing BAC Levels in New York
There are three different tests that can be used by police officers to determine BAC: breath, blood, or urine. The most common form of testing in the state of New York is the breath test—they are cheap and quick, can measure BAC with some degree of accuracy, and are approved under New York State Vehicle and Traffic Law 1194.
The breath test is a sample of your breath taken through a device known as an Alcotest 9510. Substances such as smoking cigarettes, drinking cough medicine, or using mouthwash with alcohol will not have an impact on your results. Unlike many other devices, the 9510 has an internal temperature sensor and a camera to ensure that the results cannot be modified or tampered with. A chemical analysis of your breath sample measures the amount of alcohol by weight in your breath. Importantly, this is not a direct measurement of alcohol in your blood.
The primary problem with this type of test is that humans have to be involved at all stages of the process. If any part of the process is done incorrectly—from a mistake in the operation of the machine, the sample itself, or how the results are treated—it can render the test results insufficient to prove DWI charges in court. The best way to be sure that this is the case is to enlist the services of an experienced New York drunk driving attorney who has dealt with these issues before.
Blood tests are administered at a hospital, urgent care center or similar place, where a nurse will take a small sample of your blood, usually from the inside of your elbow or on the back of the hand. This blood is then sent to a lab for a chemical analysis, which determines the amount of alcohol in your system by measuring the volume of alcohol in your blood. Blood tests are considered to be more accurate than breath tests (although they can still be inaccurate).
Urine testing is only used in very rare cases. For example, if your BAC is above a .12 immediately after your arrest, you may be asked for a urine sample. However, urine tests are less accurate, and are reserved for use by the police only in certain situations.
If you refuse to submit to any of these tests, you will immediately lose your license and your driving privileges. It is often a good idea to submit to these tests at least until your case is heard in court; arguments regarding the accuracy of the tests can be made at that point.
Jail Time and Fines for Exceeding Legal BAC
The legal blood alcohol limit in New York is .05%. If you are stopped and found to be above the legal limit, there are a range of penalties that you face. These penalties are in addition to the administrative penalties that arise from the DMV, which we will discuss here.
For a first-time offender, you will be charged with a misdemeanor. In terms of jail time, you can have up to one year and a fine of $1,000. There is an option for alcohol rehabilitation instead of jail time. Your license will be suspended for at least six months.
If you are charged with Aggravated Driving While Intoxicated, your BAC was .18% or higher. You may have to spend up to one year in prison and pay a fine of $2,500. You also face license suspension for a minimum of one year.
A second-time DUI offender faces more severe consequences. You may be charged with a felony, which is punishable with up to four years in jail and a $5,000 fine. If you are again charged with Aggravated Driving While Intoxicated, you will be facing four years in prison and a fine of up to $5,000. Your license will be suspended for at least a year.
When you are arrested for drunk driving, law enforcement officer takes your driver’s license for a suspension period, which is typically 6-12 months. You can contest the suspension within 10-15 days of your arrest in court. It’s possible for your driving privileges to be given back during the hearing, depending on your case.
Defenses Against the Legal Limits
Even if a defendant has been arrested and charged with DWI, there are still legal defenses that can be used against a BAC charge. For example, courts normally require a person to be observed for 15 minutes prior to any breathalyzer test. If the officer did not watch the defendant for the prescribed time, the results may not be accurate. Courts also require that the machine be in working order. If the breathalyzer was not up to specifications for technical reasons, then the results can be inadmissible. In People v Brannan, 16 Misc 3d 1130 [A] [Crim Ct of New York County 2007], the defendant moved for dismissal of the DWI information. The defense asserted that the breathalyzer was defective because the inspection conducted was not in accordance with Department of Health rules and regulations. The defense argued that the exemption from these rules for law enforcement and other agencies did not apply because the Department itself does not permit police agencies to inspect their own equipment. The court agreed, noting that budgets dictate what inspections were actually performed . In People v Mancusi, 1 NY3d 215 [2003], cert denied 540 US 1068 [2003], the defendant’s wife was stopped for speeding and arrested. The defendant took her car keys and was questioned by police in a nearby bar. He refused a breath test, so the officer deemed him intoxicated. The defendant argued that he was not a driver, but was actually just a passenger who realized that his wife was drunk and got his wife’s keys to keep her from driving. The court concluded that the defendant’s actions in attempting to secure his wife’s keys were sufficient to conclude that he intended to drive while intoxicated, and that the police’s conclusions did not affect the propriety of the arrest. In People v Ramos, 223 AD2d 637 [2 Dept 1996], the defendant was charged with DWI and aggravated DWAI. Ramos’ breathalyzer test indicated that he had a .13 BAC. However, in addition to the rationales used by the officers in Mancusi, the police claimed that they considered there to be an increased risk because Ramos drove a bus to transport school children, who could be harmed by intoxicated driving. Thus, the police needed to secure the vehicle in order to protect the children.
High BAC and Your Insurance Rates and Driving Record
A driving while intoxicated charge does not stop when a person makes it home after their arrest, rather it becomes increasingly dangerous and costly for those people that would be charged with a DWI in New York. The New York Department of Motor Vehicles maintains drinking and driving records on individuals who are charged with a DWI, including DWAI’s, in New York State. This information registers with their computer databases and is accessible by outside organizations and insurance companies, and you, the motorist, will be the individual paying the cost.
Insurance companies will charge higher premiums to money from New York individuals who have been convicted of DUI, or Driving Under the Influence, in the last 5 years. This new form of high risk insurance costs at the very least twice the former cost of car insurance for a period of 5 years, meaning the cost will be approximately 10 times higher than the former level. If an individual with a poor record of drinking and driving does manage to find a carrier, they will be required to pay until they reach a good standing as a risk and no longer pose a financial threat to the insurance company. New York drivers are not only at risk from insurance increases if convicted of a DWI, they will also be penalized by an increase in his or her insurance premiums.
In 20 states, an individual who is arrested for a DWI may be ordered to have a required ignition interlock device placed in their automobile. This device is essentially a Breathalyzer used to start the engine of the vehicle. If the individual has been drinking and breath tests show over a predetermined limit the officer may refuse to allow the individual to start the car.
The only way to remove an interlock device, which requires a monthly fee, is to have the DMV send a letter to that effect for current violations. To add the interlock device to a car owners vehicle, it is usually a cost of $150 to $200, plus installation fees of $50 to $100.
If the motorist cannot afford to pay the monthly fee for an interlock device, a state may be willing to subsidize the cost for families of limited income. In New York, indigency programs levy a $10 to $ 15 processing fee for low income individuals who can prove they cannot afford the Judge or the DMV interlock requirements. If the Judge agrees with the indigency representation, then they set the fine at one dollar a month for the life of the restriction (1 year).
Once a drinking and driving charge is filed, the chances are that your insurance rates will go up, the fees, taxes and fines associated with your charges will go up, and you will have a permanently damaged driving record.
How to Stay Under Legal BAC Limits
Be mindful of alcohol limits before drinking: It’s important to know your own limits when it comes to drinking alcohol, but it’s even more vital to stay within the legal Blood Alcohol Content (BAC) limits to ensure your safety and the safety of others on the road. Pace yourself throughout the evening if you are planning to drink, and make sure to stay within the 0.08 percent BAC limit in New York. Plan your evening in advance: Plan ahead and organize other ways to get home if you are planning to consume three or more drinks. If you own a smartphone, there are several safe ride-hailing apps in New York that make calling a ride on your phone seamless and easy. Take a taxi, rely on a sober friend to drive you home or take public transportation. Don’t rely on coffee: A common misconception about Alcohol Intoxication is that drinking coffee will naturally sober you up faster. In reality, drinking coffee will not have any effect on blood alcohol levels, and while it may help with hangover symptoms after you wake up, it will not save you from a drunk driving charge. Know if you have a low tolerance: Everyone reacts differently to different amounts of alcohol, and people’s tolerance for alcohol depends on many factors, including their body weight, alcohol history and gender . Understand and respect your own tolerance level when drinking, because very few people can handle a large amount of alcohol. Monitor your drinking: Use the "one hour, one drink" rule when consuming alcohol. For every drink you have, wait at least one hour before you have another. The amount of alcohol in each drink can vary greatly depending on what you’re drinking, but the average alcoholic beverage contains about 0.54 ounces of pure alcohol. A drink containing this amount or more may put you over the legal limit, especially if consumed quickly. According to the National Institutes of Health, about 20 percent of alcohol you consume will be absorbed into the bloodstream within one hour. After consuming only one drink that contains 0.54 ounces of pure alcohol, most of the alcohol will have already gone through your body and into your bloodstream. If you wait at least one hour before having another drink, you are giving your body time to metabolize the first drink and process it through your body, which will lower your BAC to a safe level and make you more fit to drive.