You’ve seen the billboards. There is also a website… The State of New York has the best of intentions. But if you believe the message, you could get into a lot of trouble.

Yes, a criminal defense attorney is telling you to not believe this slogan. No, I’m not trying to get you into trouble so I’ll have more business.

Both the billboard and the website have the same flaw. Their message, by inference & omission, is you are legal to drive with a blood alcohol content (BAC) of up to .08. Once you get to .08, you are in misdemeanor land. Misdemeanors are crimes.

Once your BAC reaches .08 you are deemed to be intoxicated and in violation of Vehicle & Traffic Law (VTL) §1192 (2). True. But the part of the truth they neglect to tell is driving with enough alcohol in your system to impair “to any extent” your physical and mental abilities needed to drive in a reasonable and prudent manner violates VTL §1192 (1), Driving With Ability Impaired (DWAI).

The boundary line for misdemeanor DWI is .08. The territory starting with .051 and ranging to .079 is the very dangerous area known DWAI. This is not a crime; it is a traffic infraction. But it has teeth: A 90 day suspension of license, a fine ranging from $300 to $500, up to 15 days in jail, a court surcharge of up to $260, and assorted DMV fees of over $1,000. Add the large hike in insurance rates and you can see this is something people should be warned about. Police will usually arrest for DWAI when BAC is above .05 BAC.

The problem I see with the “.08, Don’t Blow It” ad campaign is it sends the message you can drive with a BAC as long as it is below .08. You can’t. If you are impaired or if your BAC is over .05 and you drive, you are in violation of the law.

I have spoken to many people who are surprised to learn they will likely be arrested for .051, .06, .07, etc. Their confusion has been supported, if not inspired by the “.08, Don’t Blow It” billboards.

The message about .08 is true, as far as it goes….you shouldn’t blow .08 or above. The danger is in the misleading implication you can drive up to .08. Given how long the billboards have been up, I don’t think the folks in charge understand the wrong message they are sending. You just can’t believe everything you read on a billboard.

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