Police in New York State have admitted to arresting and charging drivers with any alcohol on their breath, although the law only criminalizes impaired driving. Well, that’s my DWI defense lawyer take on the story, but you tell me:         

"If you’re going to drink, do it at home, designate a driver or hire a taxi. We’re not saying there’s anything wrong with drinking – just drinking and driving," said state police Lt. Douglas Larkin of Troop K in Westchester…

Once the driver rolls down the window, (the officer) said, it’s easy to tell if he or she has been drinking.

"The first thing that hits you is the odor of alcohol -it’s so obvious," he said. "I’ve had a few drivers who know they’ve been drinking and try to play it down, but the odor on their breath gives them away."

“Drinking and driving.” And having alcohol on your breath. These are the main standards it appears that police use to make an arrest for DWI.

But the law itself doesn’t say having a detectable odor of alcohol on your breath and operating a motor vehicle is illegal (unless you are under 21 – then it’s a DUI in Texas). Driving while having lost the normal use of your mental or physical faculties, due to the introduction of alcohol, a controlled substance, etc., is illegal.

On a side note, I’ll add this: I advise friends and family, and anyone else who asks, that in Austin, DWI arrests are made using this same standard.

If you are pulled over for a traffic violation in Austin, Texas, and the police officer smells the odor of an alcoholic beverage on your breath, you are very likely going to jail for DWI. I have heard testimony from Austin Police Department DWI Task Force officers that is substantively the same as what is quoted above.