In the following DWI FAQs, New York DWI lawyer Carl Spector provides answers to your most frequently asked questions regarding DWI law in New York State. Still have questions after reading our DWI FAQs? Contact our office for a free confidential consultation. Let our experience work for you.
Whenever someone deals with the New York criminal justice system, not only will the judge expect the person to be represented by an attorney; it’s also a requirement. The person will have to decide whether they want a criminal attorney who had particular emphasis on doing DWIs, or just any criminal defense attorney.
The first thing to keep in mind is to try to get an experienced New York DWI Attorney for the New York criminal justice system, so I would suggest that the person search out criminal defense attorneys who focus their attention or practice on defending DWIs and DUIs.
It’s not illegal in the State of New York to be over the age of 21 and operating a vehicle after consuming alcohol, but it is illegal to consume alcohol to the extent that the person’s operation of the motor vehicle would be impaired. If someone only had two beers and their ability to operate the motor vehicle was not impaired, their admission that they only had two beers might not necessarily hurt them because there are many people on any given night who consume alcohol at a relatively moderate level and their ability to operate the motor vehicle is not impaired by that.
It is fine if someone who was at least 21 years old admitted to a police officer that they had only had two beers. There is a distinction between drinking some and drinking too much, although most people don’t realize the blood alcohol content in their system may be higher than they would guess, meaning it may be 0.08 or higher.
It’d be good to remember that the judge will have his particular opinion and we as attorneys know that the judge will require the person to get an attorney in the New York criminal justice system. It would be a bad idea for someone to not have an attorney because there are many ways that an attorney can protect their client’s legal rights. An attorney can explain the ramifications of certain actions and they can navigate the waters of a DWI or a DUI case in a way that mitigates, diminishes or even removes any potential sentences, penalties or fines. The judges know this, because they literally see hundreds, if not thousands, of DWI cases every year.
Public defenders can actually handle an entire DUI case, although many people won’t be financially eligible for a public defender, since there are eligibility markers and requirements; such a person would have to hire a private attorney.
A lot will depend on the type of experience, background and focus the public defender had on DUI cases. The person should also consider the type of attention they wanted as a person who has experienced this traumatic event in their life, because people ordinarily want more attention than a public defender can provide. On the other hand, a private attorney can give the client the attention they need, could go into the details of the case and walk the client through the entire process.
In New York, there are consequences whether or not someone blew into the breath testing device. There is a general rule that states that a person should not take the test if they believe their blood alcohol content to be a 0.18 or more. The problem with that analysis is that people generally would not know what their blood alcohol content might be prior to blowing into that device, so someone who thought they might have a blood alcohol level of a 0.18 would actually be more than double the minimum legal limit, because the legal limit in the State of New York is 0.08.
While most people would not know what their blood alcohol content might be, they would know how much they had to drink over what period of time. The consequences of taking a breath test is that there would be a breath reading that the person is stuck with, even if it’s defendable. Blowing a 0.08, 0.09, 0.10, 0.11 or 0.12 would be a lot better than blowing 0.13 or higher, because they could get a better possible plea bargain, whereas the higher readings are more problematic in plea bargaining.
A refusal to take the breath test will trigger a Department of Motor Vehicles civil case against them, and make that person subject to a civil penalty of $500, as well as a loss of driving privileges in New York for one year, so there could even be consequences if the person refused the breath test.
There are other consequences for refusal, in that the prosecutor could view the refusal as an aggravating factor which might be used against the person if they went to trial. This would usually be a situation that cannot be changed, since the person would have already made the decision by the time they spoke to their attorney, although they should be aware that the refusal will have to be vigorously defended as well as the criminal case.
In New York, field sobriety tests are not conducted in the field at all, although it would depend on what municipality the person was in, or any of the five boroughs in Manhattan, New York County, Manhattan or Staten Island, Richmond County or Brooklyn, or Kings County or the Bronx or Queens.
The roadside sobriety tests aren’t done on the roadside because when the person is arrested, the tests are actually be done in the controlled environment of a police station in a special room equipped with a video camera, where they can measure how the person walks, based on lines on the wall and the floor. Very few people have ever asked me whether or not they should refuse to take field sobriety tests, but since they are recorded in New York City, including the five boroughs, the general rule is that they should only attempt them if they feel they will do really well; if there is any doubt, they shouldn’t attempt field sobriety tests because they are recorded and could possibly be used against them at trial.
Refusing to take those tests could also have a negative consequence of showing consciousness of guilt; they could claim refusing to take the tests indicates they knew they would not pass. Very few people actually refuse to take the field sobriety tests, which I find surprising because I see very few cases where it benefited the client to take them.
I don’t think most people could say the alphabet backwards, even if they were sober, intelligent, clear and were not under the influence of drugs or alcohol. I would probably refuse that test because it’s not an ordinary test. Some police officers do ask people to say the alphabet starting at a certain letter, for example, D, and stop at the letter X. The person is able to refuse to take these tests, and the general rule is that they should only attempt it if they knew they could perform it, which would be proof they were sober and not under the influence.
A person who wanted to hear this verdict has to make a commitment to hire an attorney whom they could relate to, and a commitment to having honest and clear communication with that attorney. That person will have to commit to being educated by the attorney about the law and to ask the attorney to explain what is actually in their best interest with regard to going to trial or not. In order to get a case dismissed after a trial, the person will have to make a commitment to the long haul; going to trial in front of a judge or jury in getting a not guilty verdict.
That person must make a commitment to himself and the attorney, and to realize that the facts of the case may not be exactly as the police officer stated, or exactly how they stated and they must be cognizant and aware that evidence may come in that hurts the case. It would be their obligation to work with their attorney to try to find a way to articulate the evidence that may, in fact, lead to a ‘not guilty’ verdict.
In the City of New York when you first get your first court appearance in New York City you go in front of a judge. The prosecutor will file certain papers and will tell the judge as well as tell you and your attorney what, if any, breath test results you had.
The judge will take that into consideration. The judge is required then, as long as your blood alcohol content is a .08 or more, to actually suspend your driving privileges while the case is going on. That’s why it is important to have an attorney from the beginning.
The evidence that would be used against somebody by the prosecution for a DWI would be the observations by the police officer. This includes their observations about your physical attributes, such as bloodshot, watery eyes, if you emanated an odor of alcohol, if you were unsteady on your feet, how you performed the standard field sobriety tests of walk and turn, one leg stand, HGN and the Romberg test.
Additionally, they use the blood alcohol content result from a test such as a breath test, a blood test or a urine test. As well as any admissions the person might have made, such as yes, I had three beers.
In the state of New York, a DWI can have a tremendous effect on someone’s driver’s license. The driver will be suspended pending prosecution while the case is going on. But there might be a hardship license available in some cases.
If someone doesn’t appear for a refusal hearing, their driving privileges will be suspended or revoked. A DWI can have a tremendous effect, especially in the very beginning and at the very end on a driver’s license.
In the state of New York there’s DWI, driving while intoxicated, and driving while impaired. Driving while intoxicated is a criminal conviction, driving while impaired is a traffic infraction.
A Criminal Conviction for DWI Can Result in a License Suspension, Fine, Mandatory Classes and the Installation of an Ignition Interlock Device
If one is convicted of a DWI as a criminal conviction, they can expect a driving license suspension of six months, having to install an ignition interlock device for one year and a $500 fine, as well as having to take DDP, which is a drunk-driving educational program. Having a conditional discharge means that they have to stay out of trouble and not get re-arrested for one year.
In the state of New York a DWI conviction is a misdemeanor. In New York DWI’s can be, with the consent of the prosecutor and the acceptance by the judge, dropped down to a driving while ability impaired. This charge is a traffic infraction, which carries a shorter period of suspension, no ignition interlock device installation, a smaller fine and most importantly, no criminal conviction.
There are many points in a DWI case that can be challenged. The idea is to challenge whatever points in that case that would lead to a successful result. Sometimes you can challenge the stop by the police, sometimes you can challenge the procedures used to give a breath test, and sometimes you can challenge the procedures used by the police to indicate that there was a refusal.
The idea is to identify each of the points where a challenge can be made and put your best foot forward into each of those challenges.
There aren’t any specific repercussions in the law. However, when someone has been arrested for DWI and there is an accident that precedes the arrest for the DWI, very often the accident is an aggravating factor that may hinder a good plea bargain for the driver who was arrested for the DWI.
Prosecutors very often hold that against the individual who was arrested, trying to state that the accident was caused by the person who had the DWI because they were intoxicated.
In the state of New York if someone has a DWI conviction and then has another arrest for DWI, both of which are misdemeanors within ten years the second one can be elevated to a felony by the prosecutor.
It’s not automatic, but it is within the discretion of the prosecutor to treat the second WI arrest as a felony. As a felony DWI’s obviously are much more serious, the consequences are much more serious, including the possibility of having to go to state prison for one and a third to four years.