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Q: How do I select an attorney after I’ve been charged with DWI?
A: Due to the severity of DWI penalties and the difficulty in winning DWI cases, it is essential to select an attorney who will provide the highest level of representation to obtain the best possible result. A Defendant should look for three critical qualities when selecting an attorney. Firstly, DWI representation should be the focus of the attorney’s practice. Any attorney can appear in Court to represent a DWI defendant. To provide the highest level of representation, however, an attorney must focus his attention on the latest cases and defense techniques . You should ask the attorney then, whether DWI is the focus of their practice, or just one of a number of areas of practice such as consumer claims, real estate closings, divorce cases or personal injury suits.
Secondly, make sure that you retain an attorney who will fight for you. A DWI attorney should be willing to try every DWI case, unless and only unless, there are good reasons not to do so. All too often, attorneys agree to defend clients and accept fees ( usually less than customary fees for DWI representation ) only to tell the client that ” there is nothing that can be done ” and that a guilty plea should be entered. Remember that you can not win unless you force the State to prove their case. Attorneys who are neither willing or inclined to try DWI cases, should be avoided. Thirdly, you should retain an attorney who has made a serious effort to remain on the cutting edge of DWI law. Attorneys should constantly be attending seminars and training sessions to be current on the most recent approaches in defending clients in these cases.
Q: Legally, just what is “drunk driving?”
A: A drunk driving offense, in New York called driving while intoxicated (DWI) or elsewhere driving under the influence (DUI), really has three general meanings:
- Driving with any amount of alcohol in your system which causes your physical abilities to be impaired in any way. This is known as “common law” intoxication.
- Driving with a level of alcohol in your system which amounts to a measurement of.08 of blood alcohol content. To be guilty of this offense, absolutely no impairment of any of your physical abilities is necessary. You may well be the world’s most talented, careful and safest driver, but if your blood alcohol content registers .08 or above you are guilty of a criminal offense.
- Driving with drugs in your system or with a combination of drugs and alcohol, no matter what the amounts of those substances may be, where your physical abilities have become impaired in any way. It does not matter if the drugs are legal, over the counter medications like antihistamines, nor does it matter if you have a prescription to take the drugs. If you are impaired as a result of taking them, then you can be found guilty of a criminal offense.
Q: What amount of alcohol do I need to drink to have a blood alcohol content of .08 or higher?
A: Each person’s blood alcohol content from drinking certain amounts of alcohol will vary, depending upon a number of factors. The main factor is your weight. To calculate your blood alcohol content based upon having normal drinks such as a 12 oz. beer, a 4 ounce glass of wine, or a single mixed drink containing a one ounce shot of 100 proof liquor, the following general rule of thumb may serve as an illustration:
one drink in one hour — .032
two drinks in one hour — .064
three drinks in one hour — .096
one drink in one hour — .021
two drinks in one hour — .042
three drinks in one hour — .063
four drinks in one hour — .084
Q: What kind of reason does a police officer or highway patrolman need to have in order to stop me to investigate whether or not I am driving under the influence?
A: The officer must have what is legally termed a “reasonable suspicion,” based on something unusual that is actually observed about the way a person is driving. This is a very low standard and it can be satisfied by nearly anything which appears out of the ordinary that might be a sign of a driver being under the influence. However, this is an area to explore for possible challenges. Similarly, during holiday seasons, police officers typically set up field sobriety checkpoints where they routinely stop every driver who passes through the checkpoint. These checkpoints do not require the officer to observe anything suspicious about a person before stopping and investigating someone.
Q: What happens to me if I am pulled over by the police or the highway patrol for investigation of drunk driving?
A: If you are stopped, always be courteous and cooperative with the officer even if you are 100% clean of any type of alcohol or drugs, and even if you are certain that your driving did not show anything unusual. Never argue with the officer. While you must cooperate with the officer, you are not required to admit you have consumed any alcoholic drinks. You have the right to remain silent. Just be polite and provide the normal information ordinarily given when one is stopped: i.e., license, registration and insurance information.
Q: What will happen if the officer who pulls me over suspects that I have been driving under the influence?
The officer will ask you to get out of the car and will instruct you to perform a series of “field sobriety tests.” These are standard physical ability measures and they include:
- Reciting the alphabet from A to Z;
- Closing your eyes and bringing both index fingers together;
- Walking along a straight line;
- Standing on one foot for a few seconds;
- Picking up a coin dropped on the ground;
In addition to these tests, some officers typically have certain field sobriety testing devices which they use. One such device is a breath meter which you blow into, another is a light to shine in your eyes in order to test your pupil reaction. It is very important that if you suffer from any chronic physical problems, such as difficulty with your balance, problems walking or with your legs or feet, that you inform the officer of these things before you go through the field sobriety tests.
Q: What happens if the officer believes that I have not performed the field sobriety tests satisfactorily?
A: At that point you will be told that you are under arrest for driving under the influence. You will be hand cuffed, searched for weapons, placed in the back of the officer’s car and taken to a jail for further tests; i.e., a “blood alcohol test.” At the jail you will also be booked and held there until you post bail or until a judge releases you on your own recognizance without bail. Once again, as upsetting and as stressful as being arrested is, it is essential that you continue to act courteously and cooperatively with the officer. Do not argue, threaten or become belligerent in any way. This type of behavior will only make the experience even more unpleasant for you.
Q: What is a blood alcohol test?
This is a physical procedure to determine how much alcohol you actually have in your system. There are three ways of doing this test:
- Drawing a sample of blood from your arm;
- Obtaining a urine sample;
- Obtaining a breath sample by having you blow into a machine called a breathalyzer; or “intoxilyzer”.
This is different from the field sobriety breath device known as an alco-sensor portable breath testing device (or “alco-sensor.”) The breathalyzer is much more sophisticated and exact. You have the choice of which one of these three tests you will take. The only time your ability to choose which test you take can legally be restricted is if you are in a locality that simply does not have a breathalyzer. The officer is required to tell you that the option as to which test you take is up to you. Instead, if you refuse to take a test, your driver’s license is automatically revoked for six months. Also, in your trial, the jury will be told that you refused to take the test and the judge will instruct the jury that they can consider your refusal as evidence of your guilt.
Q: What should I know in order to make an intelligent choice about which blood alcohol test I should take?
A: As mentioned above, from the standpoint of the police and prosecution they will always prefer to have the more accurate sample of your actual blood to use against you as evidence in court. The least accurate and least reliable test is of a urine sample. However, if it has been some period of time from when you had your last drink to when you give the urine sample, the sample may test out to your disadvantage with an inaccurately high reading against you. This is because in such a situation, the alcohol content in your excreted urine is actually greater than the amount of alcohol you have remaining in your system. On the other hand, a breath test may show an inaccurately high reading against you if you take the breath test shortly after your last drink. This is because of the high alcohol content lingering in the mouth, esophagus, and the upper digestive system. If you have used any kind of breath spray, mouthwash or even should you burp shortly before the breath test, then the reading could be inaccurately high against you. Both the blood and the urine samples will also show the presence of drugs as well as alcohol. However a breath test can only determine alcohol content and nothing about drugs. Whichever test you take must be given to you within 2 hours of your arrest.
Q: What does the prosecution need to prove to win a conviction?
In New York, the standard for Driving While Intoxicated (DWI) is set forth in the Office of Court Administration book of charges. The charge setting forth the standard for intoxication is: “A person is in an intoxicated condition when such 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.” The standard for Driving While Ability Impaired (DWAI) is as follows:
“A person’s ability to operate a motor vehicle is impaired by the consumption of alcohol when that person’s consumption of alcohol has actually impaired, to any extent, the physical and mental abilities which such person is expected to possess in order to operate a vehicle as a reasonable and prudent driver.” Persons charged in New York with driving while under the influence of alcohol or drugs are prosecuted under Vehicle and Traffic Law §1192.
1. Driving while ability impaired. No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol.
2. Driving while intoxicated; per se. 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, made pursuant to the provisions of section eleven hundred ninety-four of this article.
3. Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.
4. Driving while ability impaired by drugs. No person shall operate a motor vehicle while the person’s ability to operate such a motor vehicle is impaired by the use of a drug as defined in this chapter.
In every case, field sobriety tests, roadside observations and driving behavior must all be thoroughly explored and related back to the essential question of whether the defendant operated his or her motor vehicle as a reasonable and prudent driver.
Q: What are the penalties for driving while intoxicated?
A: Drunk driving penalties have become very severe in the past few years. For example, a conviction for a first time DWI misdemeanor offender, the maximum possible penalties the court could impose are:
- A fine of between $500 and $1,000, up to 1 year in jail, or both.
- A period of probation of 3 years.
- Mandatory revocation of his or her driver’s license or privilege for at least 6 months.
- Discretionary revocation of his or her registration for at least 6 months.
- A mandatory surcharge of $110.
- A mandatory crime victim assistance fee of $10.
- Discretionary imposition of a requirement that the defendant attend a single session.