Driving While Intoxicated (DWI) is a criminal offense in the State of New York. A first time DWI charge is a misdemeanor offense. However, it is a Class E Felony to operate a motor vehicle in an intoxicated condition with a child (15 years or younger) in the vehicle (Leandra’s Law). A second or subsequent DWI arrest within a 10 year period will also rise to the level of a felony charge. Driving While Ability Impaired by Drugs is a misdemeanor. Driving While Ability Impaired by Alcohol is a traffic infraction and thus not a crime.
There are several types of DWI charges in the State of NY. Driving While Intoxicated, Per Se is Driving While .08 or more of one percent of alcohol is in their blood stream as determined through a chemical test. (VTL 1192.2). Police officers utilize breathalyzers, urine analysis and/or blood analysis to determine the alcohol content in your blood system. New York is an implied consent state which means any motorist driving on NYS roadways must submit to a breath, blood, urine, or saliva test in order to determine the amount of alcohol or drugs in the driver’s system. A refusal to submit to a chemical test will trigger a refusal hearing in the State of NY which may result in a one year loss of driving privileges (see DMV Refusal Hearings for more information).
The second type of misdemeanor DWI in NY is what is called Common Law DWI (VTL 1192.3). In a common law DWI, the police use evidence other than a chemical test to determine possible intoxication, such as, poor driving, bloodshot/glassy eyes, slurred speech, unsteady gait, odor of alcoholic beverage emanating from motorist’s breath, impaired coordination, failing field sobriety tests etc.
It is common for a police officer to charge a motorist with both sections of DWI (assuming you submit to a chemical test) if the officer believes you were driving under the influence of alcohol. The police can also charge a motorist with Driving While Ability Impaired under drugs (any controlled substance that can impair your ability to operate heavy machinery) and Driving While Ability Impaired by Alcohol (BAC of .05-.07).
An experienced DWI attorney will review all the discovery (potential evidence against you in the case) to ascertain the strength of the People’s case. Some things we analyze are: Did the police have probable cause to stop your vehicle for a violation of the vehicle and traffic law, or if you were stopped at a DWI Checkpoint, was the checkpoint being operated properly? If the police did not have probable cause to stop you or if the checkpoint was not being operated in compliance with the law, an experienced DWI attorney can fight to have the case thrown out. Assuming, the police had a valid reason to stop you, how strong is the evidence that you were driving under the influence of alcohol or drugs?
Law Enforcement Officers started using a battery of coordination/balance tests in the early 1980’s that are known as The Standardized Field Sobriety Tests (SFTs) to determine possible impairment of motorists suspected of impaired driving. We explore if the police performed field sobriety tests in your case and the results of any field sobriety tests? Has the motorist previously suffered any injuries or disabilities that could impact their ability to perform these tests. The tests are comprised of the horizontal gaze Nystagmus (HGN), walk and turn and the one leg stand. The horizontal gaze nystagmus is a test where the officer, using a stimulus (usually a pen) will ask a motorist to follow the stimulus with their eyes.
The officer will then make several passes with the stimulus looking for lack of smooth purist, distinct Nystagmus at maximum deviation and the onset of Nystagmus prior to 45 degrees The officer is looking for nystagmus which is the involuntary jerking of the eye. Imagine if you will, wiper blades on a wet windshield, the wipers move back and forth smoothly, however, when used on a dry windshield, the wipers skip and jump, your eyes do the same. However, there are many things that can cause nystagmus besides drugs and alcohol, unfortunately a lot of police officers see nystagmus and assume impairment by drugs and alcohol. 4/6 clues on this test is a failure. Tell your attorney if you have any conditions that can cause Nystagmus.
The walk and turn test requires the suspect to walk a straight line (either real or imaginary) and take nine heel to toe steps, make a choppy turn and return nine steps back. If the suspect is not able to keep their balance in the start position (right foot in front of left foot, on the line in heel to toe fashion) while listening to the instructions, starts the test too soon, misses heel to toe (more than a half inch), steps off line, uses their arms to balance (more than six inches), stops while walking, making an improper turn or taking the wrong number of steps, a clue is noted, 2/8 clues is a failure. The one leg stand requires a suspect to lift the leg of their choice six inches off the ground and stay in that position for thirty seconds without swaying, raising their arms (more than 6 inches), hopping or putting their foot down, 2/4 clues is a failure.
Many People do not know that participating in these tests is not required. Additionally, a lot of people have poor balance or are extremely nervous after just being pulled over and asked out of the vehicle, which can impact their performance on the tests. Some people have poor balance and coordination and would never be able to pass these test regardless of any alcohol consumption. However, the police ask motorists to perform these tests on all types of road conditions and all different weather conditions. A failure of one or more of these test will be used as probable cause to arrest a motorist for DWI/DWAI. Therefore, our recommendation is normally not to participate in them!
An experienced DWI Attorney will also explore any chemical tests you submitted to. Was the test conducted properly, was the device used to ascertain your blood alcohol content and/or the presence of drugs in your system properly maintained, calibrated, and inspected? Was it working properly on the night in question? Did the police interrogate you without reading you your rights? Was the Breath Test Officer (BTO) trained and certified. Was his/her certification current?
When facing such a serious charge, it is important to consult with a DWI attorney prior to going to court. Our consultaions are free! Whether you refused or submitted to a chemical test, your privilege to drive in NY will most likely be suspended on your first court appearance. (Documented Refusal Charge or documented breath sample of greater than .07. An experienced DWI attorney can advise you if you are eligible for a hardship or conditional license to get to work, school and medical appointments during the pendency of this case. Appearing without an attorney can be detrimental to your privilege to operate in the State of NY. The team at Harold Dee, Attorney at Law, P.C. provides free legal consultations for DWI/ DWAI, call today 914-241-7963.
New York is an implied consent state. New York’s implied consent laws state any motorist driving on our roadways must submit to a breath, blood, urine, or saliva test to figure out the amount of alcohol or drugs in the driver’s system. A refusal to submit to a chemical test will trigger a Refusal Hearing in the State of NY. A refusal hearing will take place in front of an Administrative Law Judge at the Department of Motor Vehicle and since Covid, is held online on Webex. The police must establish the following four elements in order to win a refusal hearing:
- Whether the police had probable cause to STOP the motorist.
- Whether the police had reasonable suspicion that the motorist was driving under the influence of drugs or alcohol.
- Whether a motorist was given sufficient warning in clear and unequivocal language of the consequences of the refusal.
- Did the motorist refuse a chemical test.
A finding of a refusal (VERBALLY OR BY CONDUCT) will result in a one-year revocation of your NY driving privileges. The refusal hearing is a separate proceeding and independent of any DWI/DWAI charges one might face in criminal court. Considering the penalties for refusing to submit to a chemical test, it is imperative that you have an experienced DWI attorney on your side during the hearing. If you are alleged to have refused a chemical test and are facing DWI/DWAI charges in Westchester, Putnam, Dutchess, Columbia, Rockland, Orange or Ulster County, the Harold Dee Team can help. Our attorneys can review the criminal charges and advise on how to best handle the situation. Call Harold Dee, Attorney at Law, P.C. for a free consultation today, 914-241-7963.
In 2012, the NYS DMV changed their regulations so that anyone with 3/4 alcohol or drug related violations revealed during a lifetime lookback (25 years) will be denied re-licensure for revocation period on their last DWI/DWAI plus five years. After that, a motorist can apply for restricted driving privileges plus an ignition interlock device for five years.
Anyone who has 3/4 alcohol or drug related violations in the last 25 years and has one or more serious driving offense (fatal accident, a driving-related penal law conviction, conviction of two or more violations for which five or more points are assessed [ie Cell Phone Use, Passing Stopped School Bus, Reckless Driving, Speed Contest] or 20 or more points from any violations) will suffer a lifetime ban. Similarly, anyone with 5 or more alcohol or drug related driving offenses in a lifetime lookback will never drive again in N.Y., unless there are unusual, extenuating, and compelling circumstances, which in our experience is almost never granted.
Considering the penalties for multiple alcohol and drug related driving convictions, it is important to consult with an experienced DWI attorney whenever you are facing DWI/DWAI charges. If you are one of the people effected by the 2012 DMV regulations, call today for a free consultation on how you may be able to get back on the road in N.Y., 914-241-7963.
Surviving the DWI Car Stop
The DMV Refusal Hearing
Collateral Consequences of a Drunk Driving Conviction
Leandra’s Law – The Ignition Interlock Law for convictions of Driving While Intoxicated (DWI)
Frequently Asked Questions about DWI
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