According to the laws in New York, "A person’s ability to operate a motor vehicle is IMPAIRED by the consumption of alcohol when that person’s consumption of alcohol has actually impaired, to any extent, the physical and mental abilities which such person is expected to possess in order to operate a vehicle as a reasonable and prudent driver." See NY jury instructions for driving while ability impaired VTL 1192(1).
Imagine this if you will. Timmy just turned 21 years old and decides to go down to the local bar and celebrate his birthday by having a drink. A long time patron of the bar, Norm, just arrives after work and overhears Timmy saying that it was his birthday and offers to buy Timmy his first drink. Both only have one drink. After his one and only drink, Timmy feels terrible; light headed, nauseous, experiences loss of balance, etc. and decides to drive home. Norm, on the other hand, feels just fine and gets a call from his boss to get back to the office for an emergency meeting. Tommy and Norm leave the bar, get into their cars and start driving. Both were pulled over at the identical time and place for going 40mph in a 35mph zone.
The officer asks Tommy and Norm if they have been drinking and both admit to the one alcoholic drink. The officer asks both to exit their vehicles. Norm is standing as straight as an arrow with no signs of impairment. Poor Timmy on the other hand, can't stand straight, keeps losing his balance, his speech is slurred and vomits on the officer's shoes.
Are Tommy and Norm both guilty of driving while impaired under New York law? Alcohol affects people differently. Factors such as, weight, height, empty stomach, tolerance for alcohol, etc. all play a part in how alcohol affects you, thereby possibly impairing your ability to drive. So many of my clients are good, honest people that admitted to the police that they had a drink. They come into my office and say, "look, I'm guilty! I had a beer and drove home." I have to explain to them that having a drink and driving isn't necessarily a crime according to New York DWI law 1192 (1). I explain to them that a prosecutor always has the burden to prove, beyond a reasonable doubt, that my client's ability to drive was "actually impaired."
New York has a good chance of proving (remember the prosecutor has the burden to prove guilt) that poor Timmy was DWI. However, New York will have a very hard time proving that Norm is guilty of DWI. That is why I can say that admitting to having a drink and driving isn't by itself a crime in New York.
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