Driving while intoxicated (DWI), operating a vehicle under the influence (OVI), or driving under the influence (DUI) are all ways to describe the same thing: intoxicated driving. Intoxication may be the result of alcohol or another chemical substance (e.g., marijuana) or both. To be a criminal offense in New York, your blood alcohol content must be at or above the .08% legal limit and/or you must be intoxicated by alcohol or drugs to the extent that you are not capable of operating as a prudent driver.
In New York, there are many arrests made daily for intoxicated driving. Those arrested are often people like you and me: law-abiding citizens. At Law Office of Brad E. Mazarin, I work hard to help you beat a DWI charge or to, at a minimum, get the best possible outcome in your unique situation. Here are some of the most commonly asked questions we get from our clients when we first meet them about their intoxicated driving charge.
What is “blood alcohol content” level?
Blood alcohol content (BAC) is a measurement of the amount of alcohol found in the blood expressed as a percentage. It is calculated in grams per 210 liters of breath, and a BAC of 0.08 means there is 0.08% alcohol by volume. Measuring BAC is a way for law enforcement to calculate the amount of alcohol someone has had and their ability to drive a motor vehicle.
What are my rights during DWI traffic stops?
If you are pulled over due to suspicion of drunk driving or pulled over for a traffic stop and then the police officer suspects intoxicated driving, you should remember you have certain rights as a U.S. citizen. Namely,
- You have the right to remain silent (except you must show the police your driver's license, registration, and proof of insurance upon request).
If you are arrested or detained, you have additional rights, including Miranda warnings.
- You can say you wish to remain silent and ask for a lawyer immediately.
- You have the right to make a local phone call, but you do not have the right to condition performance of tests on first being allowed to call your emergency contact.
If you believe your rights were violated in any way, try to write down everything you remember, including the police officer's agency (state police, county police, etc.), badge number, and patrol car number.
Can I refuse a portable breath test in New York City?
You cannot be required to submit to a portable breath test (PBT) unless you have been involved in an accident or committed a traffic violation. PBT's are used by police officers on the street to see if you are driving while over the limit. The results of these tests are typically not admissible in court if you are subsequently arrested and charged with DWI. If you refuse to submit to a PBT after being stopped for a traffic violation or being involved in a car accident, you will almost certainly be arrested for DWI and also may be issued a separate summons for refusing a breath test.
Once you are arrested, you will be asked to submit to what is know as a chemical test. Chemical tests, so named due to historic reasons, are more sophisticated devices more measuring the alcohol content of breath than PBT's are and are designed to be accurate enough to be admitted as evidence in court. You can refuse to submit to a chemical test but there are consequences for refusing. First, your NYS license, or, for out of state drivers your privilege to drive in New York, will be revoked for one year. Second, the fact of your refusal will be admissible in any subsequent criminal trial as evidence of consciousness of guilt.
What are standardized field sobriety tests (FSTs)?
Standardized field sobriety tests (FSTs) are tests approved by the National Highway Traffic Safety Administration (NHTSA). These tests are allegedly designed to help police determine whether a driver's BAC is .08% or higher.
There are three standardized FSTs:
- the Horizontal Gaze Nystagmus Test (HGN test)
- the One-Leg Stand Test (OLS test)
- the Walk-and-Turn Test
The results of these tests are designed to help police officers make the arrest/don't arrest decision and may be used as evidence against you in an intoxicated driving case. Non-standardized tests, on the other hand, are not validated by NHTSA and have little if any evidentiary value.
Non-standardized FSTs include:
- finger to nose test
- the finger count test
- the hand pat test
- the alphabet test
- the reverse counting test
- the coin pickup test
Can I refuse field sobriety tests in New York?
You are not required to submit to FST's in New York. However, refusing on the street to submit to FST's will almost certainly result in your being arrested for DWI. This is not as bad as it sounds though, because if a police officer has you out of the car on suspicion of DWI, you are most likely going to be arrested anyway. Since police officers almost always find that drivers they suspect of being intoxicated "fail" the field sobriety tests, it is my opinion that submitting to these tests often does more harm than good. In any event, in New York City the police do not ask you to submit to FST's on the street. Instead, FST's are only administered back at the police precinct, after you have already been arrested. The entire procedure is videotaped, so performing well on the two coordination tests (the walk and turn test and the one leg stand test) can be helpful, especially in cases where there is no breath alcohol reading, or, at times, when there is a very high reading.
The bottom line is that you can refuse to perform the FST's, and, if you are drunk, you probably should refuse them. However, if you are well coordinated and have not had much to drink, it may be beneficial to take the two coordination tests. With respect to the HGN test, it is probably never beneficial to submit to this test since the police officers who administer these tests seem to always find that there is nystagmust present, and there is no way to tell from the video if they are correct.
After a DWI arrest in New York, will my driver's license be suspended or revoked?
In New York State, your license will be suspended pending prosecution at arraignment if your BAC was measured at .08% or higher. This suspension will remain in effect while the case proceeds. However, you may apply for what DMV calls a "pre-conviction conditional license." This pre-conviction conditional license, sometimes referred to as a pickle, will allow you to continue driving prior to any trial or plea.
If you are charged with a refusal to submit to a chemical test, your license will also be suspended at arraignment. However, this suspension will last only until the first scheduled DMV Refusal Hearing or 15 days, whichever comes first. If, as often occurs, the police officer does not appear for the DMV Refusal Hearing, the hearing will be rescheduled and the temporary suspension will be lifted. At the adjourned date, the Administrative Law Judge is permitted to conduct the hearing based on the paperwork alone, without requiring the police officer to appear. If you are found by the ALJ to have refused the chemical test, your license will be revoked for one year.
Can I beat a drunk driving charge in New York?
It is possible to beat a drunk driving charge, although it is not typically an easy process. It will require a thorough understanding of the law and a thorough understanding of the technical nature of field sobriety tests, breath tests, blood tests, and urine tests. Understanding the latter tests is critical to identifying errors (technical or human-made errors) to highlight the unreliability of the results.
Aside from errors or unreliable test results, an alleged DWI offender may have had their constitutional rights violated. Part of what a good criminal defense lawyer does is making sure that evidence which was gathered improperly does not get admitted against his/her client. What some people derisively refer to as "technicalities" are really serious violations of individual rights. Criminal defense lawyers keep police officers honest, enforce our Constitution, and protect our freedoms. If, due to violations of a person's rights, critical evidence is suppressed, a good criminal attorney can get a case dismissed or obtain a favorable plea bargain.
DWI's are highly technical and you will need to find a lawyer who understands criminal law and the science behind breath testing in order to have a fighting chance at beating a DWI charge.
Can I just plead guilty to drunk driving?
An arraignment is a hearing where the defendant can plead guilty or not guilty. A defendant can always plead guilty to a crime, but, in the early stages of a criminal case this is almost never a good choice.
- If you plead guilty immediately, you lose any opportunity to fight the DWI charge.
- If you plead guilty immediately, you also lose any opportunity for a plea deal, if that is what would be best in your unique circumstances. Admittedly, a plea deal means you would plead guilty, but the process can render a better outcome than an immediate plea of guilty. For instance, in New York, a DWI charge can often be pled down to the lesser charge of Driving While Ability Impaired (DWAI). Since DWAI is only a traffic offense, and not a crime, this plea can be advantageous in the right circumstances.riving lawyer in New York to win my DWI case
If you plan to fight your drunk driving charges, it is in your best interest to have a DWI attorney represent you. The law can be complex. The evidence is often highly technical and scientific. Working with a skilled DWI defense lawyer will usually lead to a better outcome than simply handling it on your own.
How Much Does a DWI Defense Lawyer Cost?
There are a lot of factors to consider when determining the cost of a defense lawyer, like:
- The experience and training of the lawyer
- Whether you take a plea deal
- Whether you go to trial
- Expert witness fees if appropriate
- More
Contact a DWI Defense Attorney in New York Today
I have devoted my professional life to learning DWI and Criminal as well as the relevant science in DWI cases. I am a member of various bar associations including the National College of DUI Defense, the New York State Association of Criminal Defense Lawyers, the New York State Defenders Association, the New York State Bar Association and several others. I regularly attend Continuing Legal Education programs both in person and on-line in order to gain more knowledge which I can use to fight for my clients. I can be reached by phone at 917-450-7078 or by email at [email protected]. If I cannot answer my phone, it is usually best to text or email me.