Founding Attorney
In 2023, New York lawmakers introduced a bill to lower the legal blood alcohol concentration (BAC) limit from .08 to .05. The goal was to reduce alcohol-related crashes, but the proposal raised major concerns about fairness, accuracy, and the risk of convicting drivers who weren’t actually impaired.
This blog explains what happened to the proposal, where things stand today, and why anyone facing a DWI charge in New York should speak with a defense attorney immediately.
What Is the Legal Alcohol Limit in New York in 2026?
The legal limit in NY is .08 BAC, but drivers can still face DWAI charges at .05. The 2023 bill to lower the limit has not passed into law as of 2025.
- New York still classifies .05 BAC as “Driving While Ability Impaired” (DWAI)
- Lawmakers continue to discuss whether the state should join Utah in adopting a .05 “per se” DWI standard
- Police departments across Nassau & Suffolk Counties continue strict enforcement, especially during checkpoints and holiday weekends
What Happened to Lowering the BAC Limit to .05?
The legal limit in NY has NOT changed. The proposal remains active in discussions but has not been enacted.
Why a Lower Limit—Even Proposed—Still Impacts DWI Cases in NY
Even without the law changing, police and prosecutors are increasingly:
- Treating .05–.07 BAC as strong evidence of impairment
- Relying heavily on breath test results, even when other signs of impairment are minimal
- Using “erring on the side of caution” as justification for arrests
This trend makes it easier for a driver to be charged and harder for jurors to evaluate cases fairly.
The “CSI Effect” and Why Breath Tests Are Still a Problem
Jurors tend to give breathalyzer results too much weight simply because they appear scientific. But breath tests at .05–.07 BAC are extremely vulnerable to:
- Machine calibration errors
- Temperature variance
- Acid reflux or GERD
- Mouth alcohol contamination
- Normal metabolic differences
This is exactly why lowering the legal limit was so controversial, and why defense attorneys remain essential, even when the limit hasn’t formally changed.
Could New York Still Lower the BAC Limit in the Future?
Yes. New York continues to review national data, including Utah’s results after lowering its limit to .05. Some legislators are pushing for renewed action, especially following rises in traffic fatalities after the pandemic years. In other words, drivers should assume stricter scrutiny is here to stay.
What This Means for Anyone Charged With DWI or DWAI in 2026
Whether your BAC is .05, .06, .07, or .08+, a conviction carries serious consequences:
- License suspension
- Heavy fines
- Long-term insurance increases
- Possible jail time
- Permanent criminal record
A defense attorney can challenge:
- Breath test results
- Lack of impairment evidence
- Improper police procedure
- Probable cause for the traffic stop
Contact Michael A. Arbeit To Defend Your New York DUI Charge
The discussion around New York’s BAC limit continues, but one thing has not changed: the risks of a DWI charge are as serious as ever. If you were arrested or accused of DWI or DWAI in Nassau County, Suffolk County, or anywhere on Long Island, do not speak to police or prosecutors before talking to an attorney.
Contact our office today to discuss your case and get immediate guidance. From the South Shore of Long Island, including Nassau County and Suffolk County, to New York City, Michael A. Arbeit, P.C. is here to protect your freedom and future.
Last Updated: December 2025