Long Island DWI and DUI Defense Lawyer Jason Bassett Explains New York’s § 1192.2 ‘Per Se’ DWI Charges

April 28, 2025 at 12:58 PM EDT

Long Island DWI and DUI defense lawyer Jason Bassett (https://jbassettlaw.com/vehicle-and-traffic-law-1192_2-driving-while-intoxicated-per-se/) is bringing attention to a critical aspect of New York's DWI laws: § 1192.2 of the Vehicle and Traffic Law, which defines "per se" Driving While Intoxicated (DWI) based on Blood Alcohol Concentration (BAC) alone. The statute holds that a driver is guilty of a "per se" DWI if their BAC is 0.08% or higher, regardless of whether any signs of impairment are observed. This objective approach, while simplifying the burden of proof for prosecutors, places significant importance on the accuracy and handling of chemical test results.

As a Long Island DWI and DUI defense lawyer, Jason Bassett of the Law Offices of Jason Bassett, P.C. explains that a "per se" DWI charge focuses entirely on BAC test outcomes. "This objective standard simplifies prosecution but also raises questions about the accuracy and reliability of chemical testing methods," the article states. It is not necessary for a driver to be visibly impaired; the BAC reading alone serves as sufficient evidence under this provision. However, Bassett emphasizes that being charged does not equate to being convicted.

The Long Island DWI and DUI defense lawyer further outlines how "per se" DWI differs from other charges under New York law, such as those defined in § 1192.3, which require observable signs of impairment. In contrast, § 1192.2 removes the need for subjective judgment by law enforcement. This reliance on test results, however, makes the admissibility and accuracy of those results a cornerstone of any legal defense.

Jason Bassett notes that several legal elements must be met for a conviction under § 1192.2. The prosecution must prove the driver’s BAC was above the legal limit using evidence obtained through breath, blood, or urine tests. In most cases, breathalyzers are used for their speed and accessibility. However, these devices must be properly maintained and calibrated. Moreover, testing must be conducted within two hours of vehicle operation, and any failure to adhere to legal procedures could render results inadmissible.

The article explains that penalties for a "per se" DWI conviction can be substantial. First-time offenders face fines from $500 to $1,000, a minimum six-month license revocation, and up to one year in jail. More severe consequences apply to repeat offenders or those whose BAC exceeds 0.18%, which constitutes aggravated DWI. In cases involving children under 16, the offense becomes a felony under Leandra’s Law, which could carry up to 25 years of prison time if a child is injured or killed.

Jason Bassett elaborates on common defense strategies in "per se" DWI cases. These include challenging the calibration and maintenance of breathalyzer machines, identifying physiological conditions such as acid reflux that may falsely elevate BAC levels, and exposing procedural errors made by law enforcement. Procedural lapses like the absence of probable cause for the stop or failure to observe mandatory testing protocols can significantly affect the case outcome.

A particularly relevant defense known as the "rising BAC" argument may apply when there is a delay in testing. Alcohol absorption can cause BAC to rise after driving, meaning the BAC at the time of the test might not reflect the level during operation. Chain of custody concerns also factor into the defense, especially when blood samples are involved, as any mishandling can compromise evidence.

New York law also identifies aggravating factors that heighten the seriousness of a "per se" DWI charge. For example, a BAC of 0.18% or higher can result in increased fines, longer license revocation, mandatory ignition interlock device installation, and even jail time. Similarly, operating a vehicle while intoxicated with a child passenger brings felony-level charges under § 1192.2(2-b), reinforcing the law's goal of deterring dangerous behavior and protecting vulnerable individuals.

For those facing such charges, working with someone like Long Island DWI and DUI defense lawyer Jason Bassett provides a path toward a fair trial and informed legal guidance. The Law Offices of Jason Bassett, P.C. is committed to reviewing every aspect of the case, including test procedures, evidence admissibility, and possible mitigating factors, to safeguard legal rights and build a strong defense.

New York’s "per se" DWI law under § 1192.2 imposes strict penalties and a streamlined approach to prosecution. However, as Jason Bassett outlines, defendants are not without options. Each case hinges on the integrity of the BAC evidence and the procedures followed during arrest and testing.

Legal representation from Jason Bassett focuses on identifying errors or inconsistencies in the state’s case, raising reasonable doubt, and advocating for the best possible outcome under the law. Those accused of DWI should understand that a charge under § 1192.2 does not predetermine the result, and proper legal defense plays a vital role in navigating the process.

About Law Offices of Jason Bassett, P.C.:

The Law Offices of Jason Bassett, P.C. provides criminal defense services on Long Island, representing individuals accused of DWI, DUI, and other offenses. Led by Jason Bassett, the firm is committed to thorough legal advocacy and protecting the rights of those facing criminal charges under New York law.

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State: New York 11722
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Website: https://jbassettlaw.com/

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Long Island DWI and DUI Defense Lawyer Jason Bassett Explains New York’s § 1192.2 ‘Per Se’ DWI Charges

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