Lowering BAC Threshold for DWI

Not Guilty Verdict in Trial of DWAI Issued at Check Point

October 22, 2018

By Jill K. Sanders, Esq.

The attorneys at Pappalardo & Pappalardo secured a not guilty verdict after trial for client A.H., who had been charged with Driving While Ability Impaired by Alcohol (“DWAI”). The bench trial concluded on October 22, 2018 before the Hon. Peter Sisca of the Port Chester Village Court.


The Facts

On November 24, 2016, at approximately 12:30 am, A.H. was driving to a friend’s house when he stopped at a check point in the Village of Port Chester. After clarifying with the officers how to proceed through the orange cones, A.H. drove up to an officer from the Westchester County Department of Public Safety. The officer claimed to smell the odor of alcohol in A.H.’s car and that A.H. had trouble pulling his license out of his wallet.

After asking A.H. to step out of the car, the officer administered standard field sobriety tests (SFSTs). On the horizontal gaze nystagmus (HGN) test, A.H. failed 6 of 6 clues (100% fail). On the walk and turn test, he failed 6 of 8 clues (75% fail). Finally, on the one-leg stand test, A.H. failed 2 of 4 clues (50% fail). The officer also performed the finger-to-nose test and the Rhomberg test, which is more often used to assess persons for impairment by drugs. Both tests indicated impairment, according to the officer.

The officer noted there was also speech impairment and eyelid tremors, and that A.H. swayed as he stood and had to support himself on the car’s door at one point. A.H. was alleged to have stated that he had three beers that evening, with the last being consumed more than an hour before. After an Alco-Sensor portable breath test (PBT) was administered and indicated a positive result for alcohol, A.H. was placed under arrest.

At the Westchester County barracks, a second officer was brought in who is certified as a drug recognition expert (DRE). This officer performed similar tests, noting that A.H. passed most of the tests and contradicting several of the arresting officer’s observations. Indeed, the DRE noted that A.H. had normal eyes (neither glassy or bloodshot), eyelids that weren’t droopy, and speech which was “unremarkable” (not slurred), among other observations.

chemical breath test was performed at the barracks using a Data-Master, with a result of 0.06% blood alcohol concentration (BAC). Rather than the extreme intoxication observed by the arresting officer, a 0.06% BAC is evidence of mere impairment by alcohol. As such, A.H. was charged with Driving While Ability Impaired by Alcohol pursuant to VTL § 1192(1), a violation and not a crime.

At a later date, A.H. was evaluated by an OASAS-approved treatment provider and was found to not meet the diagnostic criteria for a substance-abuse disorder. The provider also opined that A.H. was not in need of substance-abuse treatment.


The Trial

At trial, the Westchester County District Attorney’s Office put on one witness – the arresting officer. The officer opined that A.H. was intoxicated that evening and not impaired, despite the 0.06% BAC reading. Further, the officer admitted to using “discretion” in performing SFSTs. He also offered that the tests performed by the DRE at the barracks were performed in a controlled environment and could, in some cases, be considered more reliable. Finally, the officer was unable to recall many of the details about the check point, including the layout of the scene and what type of lighting (if any) was present.

The attorneys at Pappalardo & Pappalardo were able to convince the judge that the prosecution had failed to prove the charge beyond a reasonable doubt. Notably, it is accepted under the law that there is a standard margin of error for any chemical breath test of 0.01% – meaning that A.H.’s reading of 0.06% may have actually been 0.05%. At a level of 0.05%, A.H. would be neither intoxicated nor impaired.

In finding A.H. not guilty of the DWAI charge, Judge Sisca noted that he had to consider the 0.06% BAC reading with the margin of error in mind. Thereafter, the officer’s testimony as to A.H.’s impairment – which seemed to support a level of substantial impairment given the numerous fails on the SFSTs – was not credible given such a reading.

A.H. was represented at trial by Angelo MacDonald and Jill K. Sanders. In being acquitted of the charge, A.H. will not be subject to a suspension of his driving privileges, nor he will he face the substantial fines, surcharges, and civil penalties that can accompany any DWI or DWAI conviction.