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Driving While Intoxicated In New York

Drunk driving in New York State is prosecuted under either or both of two theories: common law drunk driving and driving while one has more than .10% of one gram of alcohol per liter in one's bloodstream. The first theory is the old fashioned drunk driving where one is weaving in traffic and having obvious problems. The second theory ignores how the driver is doing but makes it a criminal offense merely to have more than the limit allowed in your blood. Roughly, one ounce of alcohol will raise your blood alcohol content (BAC) .02%. In other words about 5 regular drinks or 5 regular sized beers. The liver metabolizes about one ounce per hour, so it can only lower your BAC by .02% per hour. If one has 8 drinks in two hours, theoretically his BAC would be .12% BAC (8 ozs. less 2 ozs. that get metabolized in two hours = 6 ozs. which, when multiplied by .02%, results in .12%). This is over the limit. Each person will vary somewhat from this calculation, but this is an accepted rule of thumb.

What are the penalties and effects on your N.Y.S. License?

DWI under either theory is a misdemeanor punishable by a maximum of one year in a county jail, and/or a maximum of a $1,000 fine (and a $90 surcharge), and a revocation of one's license for a minimum of 6 months. Penalties increase for repeat offenders.

When one's BAC is lower than .10%, but over .07%, such a driver is deemed to be driving while his ability is impaired. This means that while illegal, it is not a crime, but is a violation. It is punishable by a maximum of 15 days in a county jail and/or a maximum of $500 fine (with a $45 surcharge) and a suspension of one's license for 90 days. The penalties are, therefore, less and one's license is suspended, not revoked, and for a shorter period than for a misdemeanor.

In New York State, you can be penalized without being convicted! For merely being arrested for DWI, your license is suspended at arraignment (when you appear before the judge the first time) and it remains suspended for 30 days if your case is not finished in that time. If one meets certain criteria, one can obtain a hardship license for the 30 days, and a conditional license thereafter. These are limited forms of driving privileges designed to avoid one from losing one's job, schooling, or health care. Keep in mind, the penalties after a conviction are in addition to this suspension pending prosecution.

What type of evidence is used?

When a motorist is pulled over and the officer suspects that the driver has been drinking, he will almost always ask the driver if he has. In answering "yes" and answering further questions such as "how much" and "where," the statements will be used as evidence against the motorist in court. These are called admissions.

The officer will also request the driver to perform psychomotor or sobriety tests outside the vehicle which are claimed to show lack of coordination and comprehension due to intoxication. These are usually reciting the alphabet, following a pen with one's eyes, standing on one foot for a period of time, touching one's nose with alternate hands with one's eyes closed and head tilted back, and walking a real or imaginary line heel-to-toe, turning and then doing it in the opposite direction (Try doing these after driving a while and see if you could pass even if you haven't been drinking! Remember, the littlest mistake or misunderstanding the direction is considered failure.)

In addition to these psychomotor tests, an officer often gives the driver a breath test by having him exhale into a handheld device called an alcosensor, which is about the size of a small cell telephone with a tube in it, at the scene. This gives the officer a BAC reading. While this reading can not be used in court, a positive result is further evidence of intoxication and cause for arrest.

If the officer believes the motorist has failed one or more of these tests, the officer places the driver under arrest and he is handcuffed. The officer will testify at trial that he failed the testing as further evidence of intoxication.

At the police station, the driver is administered a breath test by use of a chemical test machine. This machine is much larger than the alcosensor. There are several different types ( e.g. the breathalyzer, datamaster, intoxilyzer) which all perform the same function. The driver is instructed to blow into it and it gives a numeric result, one's BAC. This result will also be used as evidence against the driver in court.

What are your rights?

Because a driver is licensed to drive in New York State, as a condition of such license, he has agreed to submit to chemical testing if arrested for drunk driving. Before the testing, though, the officer is required to read to the motorist what will happen if he refuses to take the test. The driver is warned that a refusal will result in the driver having his license taken from him by the court until he has a hearing on the issue of the refusal. If he is later found by a hearing examiner to have refused the chemical test for no legal reason, then his license is revoked without regard to the outcome of the DWI case against him. If the officer did not read the language explaining this to the motorist and if the driver refused to take the test, it can be a ground for reinstating the license to the motorist despite the refusal.

As with any criminal matter, the motorist has a right to remain silent. This means that right from the initial stop he may and he can decline to answer questions which might incriminate him. Such questions dealing with, for example, his drinking, where, when, how much, etc. After all, these responses can be incriminating statements. Of course, one is not thinking about this when stopped, and one often answers the questions, hoping that an officer will not notice or will let him go (but that only happens in the movies). This right to silence exists even before one is given the well known recitation of Miranda rights (which explain that if you say anything, it will be used to convict you at a trial). Your right to remain silent can be extended to any formal questioning at the police station at any other point before or after your arrest.

You also have a right to demand a lawyer at any time. You probably won't be provided with one, of course, but the police can not question you without one if you have asked for one, even if you can not afford one.

In addition, you can not be forced to take the sobriety tests. One can politely decline.

If you are advised that you committed a moving traffic infraction (e.g. going over the yellow line) and are asked to take the alcosensor and refuse, you may be ticketed for that refusal. But this is only a violation, not a crime.

If you do not take the breathalyzer at the police station, that will result in the revocation of your license, as mentioned earlier. Also, the refusal can be used as evidence of consciousness of guilt at your trial.

As you have probably deduced, exercising one's rights at the time of the stop, arrest and testing are one's only means available of affecting the evidence that will be used against the driver at his later prosecution.

Another protection is the right to telephone an attorney. You should exercise this right. If an attorney is contacted, he or she can protect you and your rights much better than if you do not contact one. It is wise to have the number and name of your attorney with you at all times, especially if the attorney is available after hours. Telephoning a relative is only effective if that relative will contact the attorney for you while you are in custody, and ask the attorney to intercede immediately. The relative has more chance of reaching someone through multiple telephone calls, a luxury the driver does not have.

The Litigation

Once arrested, does the driver, now a defendant, need an attorney? Once arraigned at his first appearance, his license is usually suspended pending prosecution, and the matter is scheduled for motion practice. After written motions by the defendant and written answer by the prosecutor, the judge issues a decision which may include ordering that pre-trial hearings be held to determine certain legal issues which may include the propriety of the officer's stop of the vehicle and the admissibility of the defendant's statements made to the police. If the prosecutor's case has not been weakened by the outcome of the hearings, the matter proceeds to trial.

At a trial, the charge can be dismissed or the defendant may be found guilty or not guilty. Sometimes a "plea bargain" is obtained before or during trial in which the district attorney and your attorney fashion an agreement which is mutually acceptable to the defendant and the State of New York.

If convicted, the defendant is sentenced and his license is further suspended or revoked.

How should you choose a DWI attorney?

A DWI case is a criminal case, even if there was no accident, no one was hurt, and matters were relatively uneventful. The outcome may affect your liberty, license, reputation, job, and finances...not to mention your ability to be insured as a driver and the rates you will pay. Lots of normal people, not thought of as criminals, get arrested for DWI and are not experienced in such matters. An experienced criminal law attorney is a necessity.

The reasons for this are several. Only an experienced criminal law attorney will be able to analyze the case sufficiently to know if, and in what way, the charge can be challenged. An unrealistic challenge will be expensive and may result in a worse disposition than a plea bargain. On the other hand, a case that should have been challenged, but was not, will result in a conviction which should not have occurred. This analysis starts at the first conference with the client, but often will only be decided some time into the case itself.

It must be recognized that DWI cases are, in reality, complicated. They involve technical devices, analysis of key facts in the stop, questioning, and arrest of the defendant, knowledge of criminal procedure and rules of evidence, and may involve a pre-trial hearing and possibly a trial.

It is often only an experienced criminal law attorney who can assist the client in overcoming his embarrassment at being arrested and seeking out potential and not so obvious defenses in a DWI case. Aside from dismissal or acquittal, weaknesses identified in the prosecutor's case may result in a better disposition by plea bargain than originally offered by the prosecutor.

These considerations are much increased if this is not one's first offense. A repeat offender is subject to conviction of a felony and loss of his rights as an American citizen, prison or jail, being placed on probation for years, a $10,000 fine, and loss of license for years. Even if a felony conviction is avoided, harsh consequences will still follow for a lesser conviction if it is not the first.

With all of this in mind, choose an attorney with significant experience in trial practice and DWI cases.

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Last modified: September 16, 2002