Wednesday, April 27, 2011

Misinformation about DWI: Posters and BAC Calculators

I was in a local court last night and saw this poster, which is misleading about NY's DWI laws.

The poster is also available online as a pdf: Leandra's Law Poster

Here's the relevant quote:

... anyone in New York State convicted of drunken driving (even first-time offenders) will be required to install at their own expense an ignition interlock device on any vehicle they operate.

First, the use of "drunken driving" is imprecise, and is not the one used in the law. The main offense, DWI, means "driving while intoxicated." It is true that convictions for DWI (or the higher BAC offense of Aggravated DWI) now require the ignition interlock device.

But there is also a lesser offense called DWAI, for "driving while ability impaired by alcohol". Many people think of this offense as also being a form of "drunken driving." The device is not required by law for DWAI (though judges may require it). Notice that at the bottom of the poster, it uses the web address: www.safeny.com/IMPAIRED.

There is also a DWAI Drugs offense where the driver is accused of being impaired by drugs, rather than alcohol. Since it is part of the same statute as regular DWI (VTL 1192) some people think of this offense as a form of drunken driving. The ignition interlock device is not required for DWAI Drugs either.

Another problem is the "on any vehicle they operate" language. In at least some early versions of how this law was supposed to be applied, it covered any vehicle the offender has access to, such as a spouse's car, or perhaps a car owned by a child who lives in the home. From what I'm hearing, this is still unsettled and could be very problematic.

My biggest beef with DWI misinformation is the BAC calculators promoted by the government. Here's the Erie County Stop DWI calculator. I put in 3 beers for a male weight 200 pounds over 3 hours, and it shows a BAC of 0.02.


With 6 drinks over 5 hours, it shows 0.05 - legal in NY.

Then it says In New York State you would be arrested for 'Driving While Ability Impaired (DWAI)'. That's a bit inaccurate. First, they don't do the supposedly reliable test of your BAC until after you've been arrested. Second, while you might well be charged with DWAI for a BAC of 0.05, most defense lawyers would get that dismissed pretty quickly. A BAC of 0.05 is legal in New York State - see my 2009 blog post on DWI, DWAI, Aggravated DWI and Plea Bargaining.

Here's what a smart calculator would say:
If you've had one drink in the past 8 hours, and you get pulled over, you are at high risk for being arrested for DWI. You are also at high risk of an erroneous breath test showing you to have a high BAC, and then being charged with a DWI offense.

It is misleading to tell someone they can have 5 drinks over 5 hours and they're okay to drive. The calculators also fail to deal with physiological reasons why alcohol might not hit your system for a period of time, throwing off the calculation.

The poster is also a great example of how ineffective government is at communicating with people. I work in this field and this is the first time I've seen the poster. I was unaware of the website. The vast majority of NY residents (not to mention drivers from other states) are far less likely than me to have seen this. Makes you wonder how much money they wasted on the poster and website.
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