Arrested for DWI in Queens and wondered about the timing of Blood Alcohol Tests – Is a BAC conclusive?

Most states, including New York, penalize as a crime (misdemeanor and possibly a felony) the operation of a motor vehicle while the driver has .08 of one percent or more by weight of alcohol in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva.  But is that the end-all, be-all of a DWI Arrest?  What about the Timing of Blood Alcohol Tests?

Many jurors and prosecutors believe and rely upon a blood alcohol content (BAC) result as being dispositive of what the level was at the time of the driver’s operation of the motor vehicle.

However, experienced defense counsel is able to neutralize such preconceptions and affirmatively show that such reliance is misplaced.

First of all, there is normally a delay and lapse of time between a driver’s operation of a motor vehicle, his or her arrest and the obtaining of blood alcohol test results.

In People v. Mertz, Victor Knapp, Esq., represented a client charged with DWI/DUI with BAC test results of .15 and .16. His client was convicted after a jury trial wherein the trial court refused to allow Mr. Knapp argue that his client’s BAC was different (and much lower) at the time that he drove the vehicle than when he was tested more than an hour later.

Undeterred by this negative interpretation of the law and unfavorable verdict, Knapp appealed to both the Appellate Term and New York Court of Appeals (New York‘s highest state court). By unanimous decision, the Court of Appeals reversed his client’s conviction and held that BAC test results are not dispositive of a driver’s blood alcohol content level at the time of driving and that counsel is free to argue (and present evidence in support of arguments) that the level was much lower at such time.

The Mertz case has been cited thousands of times in New York courts as well as in decisions throughout the United States.

Victor Knapp, Esq. has been defending DWI/DUI cases for over 33 years in Queens County as well as throughout New York State.


Victor Knapp