Once a DWI arrest is made, the District Attorney's office has the final say regarding which charges will be brought.
In our system, the government has the burden of proving all charges beyond a reasonable doubt. A DWI charge can be successfully challenged. Choosing a knowledgeable, experienced, and aggressive DWI defense lawyer is the most important decision you can make.
If you are facing criminal DWI charges in New York, contact the Law Office of Brad E. Mazarin.
Elements of DWI in New York
The elements of a DWI prosecution depend on the specific offense. DWIs in New York are charged as a violation of New York Vehicle & Traffic Law Section 1192. If a driver has a blood alcohol content (BAC) of 0.08% or higher, he will be charged with a “per se'' DWI. However, a driver with a BAC under 0.08% can still be charged with DWI if the driver is thought to be intoxicated or under the influence of drugs.
The elements of a DWI require showing that the defendant:
- Was operating a motor vehicle,
- In an intoxicated condition.
Operate a Motor Vehicle
A motor vehicle means any vehicle operated or driven on a public highway. This includes private roads open to motor vehicle traffic.
To operate a vehicle means to drive it. A driver can also be found to have Operated a vehicle if she was sitting behind the wheel of a vehicle for the purpose of placing the vehicle in motion, if she moved the vehicle, or if the engine is running. Operation cases are always fact specific and often require a defendant to testify.
In an Intoxicated Condition
Under VTL § 1192(3), “No person shall operate a motor vehicle while in an intoxicated condition.”
A person is in an intoxicated condition when the person has consumed alcohol to the extent that he or she is incapable, to a substantial extent, of employing the physical and mental abilities which he or she is expected to possess in order to operate a vehicle as a reasonable and prudent driver.
In determining whether the driver was intoxicated, the jury weighs all the surrounding facts and circumstances, including:
- Physical condition,
- Appearance,
- Balance and coordination,
- Manner of speech,
- Presence or odor of alcohol,
- Manner in which the defendant operated the vehicle,
- Opinion testimony about the driver's sobriety,
- Circumstances of an accident, and
- Results of a chemical test.
Per Se Intoxicated
Under VTL § 1192(2), “No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva.”
If the jury finds that the driver had a BAC of 0.08% or more in his blood, they may infer that the driver's BAC exceeded the limit at the time of operation of the vehicle. In deciding whether to draw that inference, the jury can consider:
- The qualifications and reliability of the person who gave the test,
- The lapse of time between the operation of the motor vehicle and the giving of the test,
- Whether the testing device was in good working order, and
- Whether the test was properly given.
Challenging Operation of a Motor Vehicle
Some innocent drivers are charged with a DWI even when they were not driving. A driver may have gotten into the car to sleep off the alcohol, or to keep warm, with no intention of driving. Sitting behind the wheel of a car without intending to drive is not operation. However, jurors can be skeptical of an operation defense and this defense will almost always require the driver to testify on his own behalf.
Challenging Intoxicated Condition
Drivers often drive poorly for reasons unrelated to alcohol. Non-alcohol or drug related factors that could make a driver appear intoxicated include:
- Not getting enough sleep,
- Physically tired after work or exercise,
- Medical conditions,
- Footwear,
- Difficulty seeing at night,
- Distracted driving,
- Argument with a passenger(s), or
- Smell of alcohol from passengers.
Challenging Chemical Test Results
A per se DWI charge requires showing the driver's blood alcohol concentration or BAC. The breath test reading is the key piece of evidence in most DWI prosecutions. However, many factors can contribute to inaccurate breath tests. A skilled DWI lawyer understands how to cross examine a breath test operator to show where proper procedures were not followed as well as to point out the flaws inherent in all breath testing.
One problem which arises frequently is mouth alcohol. Mouth alcohol will often cause falsely elevated BAC readings. Some of the causes of mouth alcohol are listed below:
- Failure of police to conduct a 15 or 20 minute observation period
- Belching or vomiting
- GERD or certain other medical conditions
- Consumption of syrupy alcoholic drinks such as Kahlua
- Use of gum, mints, cough syrup or mouthwash,
Burden Of Proof In a DWI Case
A citizen accused of DWI does not have to prove his innocence. The prosecutor must prove all of the elements of DWI beyond a reasonable doubt. If the jury finds that it has a reasonable doubt as to any element, the jury must find the defendant Not Guilty. A good defense attorney devotes all of his efforts to establishing reasonable doubt!
Aggressive Smart DWI Defense
With over 20 years of experience fighting for his clients, Brad Mazarin works hard to protect your rights. An aggressive and smart DWI defense involves challenging the elements of the offense with the goal of winning a Not Guilty verdict. Contact the Law Office of Brad E. Mazarin for a free consultation.