As experienced New York DWI attorneys, we deal with many different types of New York DWI cases. Many times in a New York Driving While Intoxicated (DWI) case, the motorist will have an allegedly high Blood Alcohol Concentration (BAC) but yet perform well on Field Sobriety Tests (FSTs) such as the “Walk-and-Turn”, “One Leg Stand”, and “Finger-to-Nose” tests. Also, many times, despite a high BAC, the motorists will appear fine on a video. When this happens, defense attorneys argue the obvious – the Breathalyzer was not working properly and therefore, the high BAC score was incorrect. Why else would the motorist perform well of the FSTs and appear fine on the video?

In an effort to try and explain this apparent discrepancy between the motorists BAC score, the prosecution will try to offer “Tolerance” Evidence. In other words, the prosecutor will try to make the jury believe that the reason the motorists performed well of the FSTs but yet had a high BAC is because the motorists is a chronic drinker who has been drinking heavily for a long time and therefore, has developed a tolerance to the effects of the alcohol.

However, the prosecutor should not be allowed to offer evidence regarding the motorist’s tolerance where they have no evidence that the motorist is in fact a heavy drinker and has therefore developed a tolerance. Without knowing the motorist’s drinking history and whether they were in fact a heavy drinker, tolerance evidence is completely irrelevant.

If you have been charged in New York with Driving While Intoxicated or Driving While Ability Impaired, call one of the experienced DWI attorneys at Tilem & Campbell toll free at 1-877-377-8666 for a free consultation. We handle cases throughout New York including White Plains, Greenburgh, Yonkers, New Rochelle, Mamaroneck and New York City as well as all other courts throughout the downstate area. You can also visit us on the web at

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