Information on Driving While Intoxicated (“DWI” or “DUI”) Cases
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A Driving While Intoxicated (DWI or DUI) is unlike any other criminal case—the evidence is heavily scientific, requiring expertise in chemistry, molecular biology, pharmocokinetics, and human physiology. Not every criminal defense attorney can take on a DWI or DUI case. The attorney must be proficient in the science behind the evidence and experienced in handling such cases
Being arrested and charged with a DWI in New York can be one of the worst experiences of your life. Not only did you have to go through the terrible process of being arrested and forced to take sobriety/breath tests, but you also face losing your license or even worse, jail time.
From the breath test and the sobriety coordination exams, to the possibility of losing your license, the whole process can be confusing and frustrating, but it’s important that you make the right decision on how to proceed.
I’ve been arrested & charged with a DWI, now what do I do?
- Take Advantage of a Free Consultation with an Attorney: Speaking with a criminal defense attorney right away is one of the best things you can do. You have nothing to lose and everything to gain because the first consultation is not only free, but it’s informative. During the consultation, you’ll be able to find out the strengths and weaknesses of your case, while having an expert in New York criminal law help you decide on the next step to take. Don’t wait until the last second to take advantage of your free consultation.
- Write down all the details of the stop & arrest: The day after you’ve been arrested for a DWI, you’re going to feel overwhelmed. Take some time to sit down and write out what you remember from the stop, arrest, field sobriety tests, and breath test. This will help to organize the facts when you consult with your attorney.
Exactly what crime am I being accused of committing?
• VTL 1192.1: Operating a Motor Vehicle While Impaired
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.
• VTL 1192.2: Operating a Motor Vehicle While Intoxicated
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.
• VTL 1192.2-a: Aggravated driving while intoxicated: per se.
Aggravated driving while intoxicated: per se. No person shall operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such 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.
• VTL 1192.3: Operating a Motor Vehicle While Intoxicated
Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.
• VTL 1192.4: Driving while ability impaired by drugs
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.
• VTL 1192.4-a: Driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs.
Driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs. No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the combined influence of drugs or of alcohol and any drug or drugs.
• VTL 1192-a: Operating a motor vehicle after having consumed alcohol; under the age of twenty-one; per se.
No person under the age of twenty-one shall operate a motor vehicle after having consumed alcohol as defined in this section. For purposes of this section, a person under the age of twenty-one is deemed to have consumed alcohol only if such person has .02 of one per centum or more but not more than .07 of one per centum 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. Any person who operates a motor vehicle in violation of this section, and who is not charged with a violation of any subdivision of section eleven hundred ninety-two of this article arising out of the same incident shall be referred to the department for action in accordance with the provisions of section eleven hundred ninety-four-a of this article. Except as otherwise provided in subdivision five of section eleven hundred ninety-two of this article, this section shall not apply to a person who operates a commercial motor vehicle. Notwithstanding, any provision of law to the contrary, a finding that a person under the age of twenty-one operated a motor vehicle after having consumed alcohol in violation of this section is not a judgment of conviction for a crime or any other offense.
If I don’t get a defense attorney and just plead guilty, will the whole thing go away?
No. By pleading guilty, not only do you open up the potential for imprisonment, but there are also other consequences you must consider:
- You might lose your driver’s license: In New York, a driver’s license is a privilege given to you by the State. You do not have a constitutional right to it. Therefore, if you plead guilty to driving while intoxicated, the DMV can take away your driver’s license indefinitely. This is why it’s so important to hire an attorney, so that he/she can fight for all of the issues surrounding your case in the plea negotiations with the prosecutors.
- It will go on your criminal record: When you plead guilty, you are being convicted of the crimes charged. This conviction is placed permanently on your criminal record and will follow you the rest of your life. If you are unfortunate enough to be charged with a crime in the future, the prosecution will use your criminal record when deciding if they should offer you a deal, and the judge will use it to determine your sentence (often giving harsher sentences to people with prior convictions).
- It can affect future employment: When you’re applying for jobs, many employers will do a background check or ask you to disclose any criminal convictions. If you’ve pled guilty to a DWI, you will have to disclose it to those employers. Often times, regardless of how qualified you are for the job, a criminal record will be the reason you won’t get hired.
- You may not be able to qualify for professional licenses: A DWI conviction may seriously and adversely affect your ability to obtain or maintain professional and government issued licenses.
- Car Insurance: Car insurance companies will periodically check your driving record and adjust your policy accordingly. Therefore, if you’ve pled guilty to a DWI, you run the risk of insurance agents not only raising your rate, but they have the option of not renewing or canceling your policy all together. This is something that a good New York DWI defense attorney will have in mind when negotiating with the prosecutors.
Why did I fail the Breath Test even though I hadn’t had anything to drink?
Most police commands in New York State use the Intoxilyzer 5000EN as the “chemical test” to determine whether you were driving while intoxicated. There are a number of reasons why the results of the Intoxilyzer 5000EN produced a false positive. The breath test machines have many flaws. If the test is not administered properly, or the machine is not calibrated properly, the results can be flawed. Also, the machines can’t always distinguish between an intoxicated person and a person with certain medical conditions, such as:
- Acid Reflux & Gastrointestinal Disorders: such as GERD (Gastroesophageal Reflux Disorder), also known as heartburn or acid reflux.
- Hiatal Hernia
- Dentures or other dental devices
- Restrictive or Obstructive Lung Disease: such as COPD (Chronic Obstructive Pulmonary Diseases)
If you’ve been diagnosed or have one of those conditions, your breath test results might have been incorrect.
I think I failed the Field Sobriety Tests. Does that mean I’m going to be convicted?
Not necessarily. Depending on the circumstances, your performance on these tests may have no bearing on the outcome of the case.
An experienced New York DWI defense attorney will be knowledgeable in the administration of field sobriety tests and consequently be able to easily determine whether the officer conducted them correctly. Important factors to consider in analyzing your performance on the physical coordination tests:
- Learning or Physical Coordination Disorders: People who suffer from dyslexia, ADHD, neurological or nervous system disorders, and the like can fail the physical coordination tests when they are completely sober.
- Overweight or Obese: The National Highway & Traffic Safety Administration (NHTSA) recommend that police officers should not administer sobriety tests to people that are 50 or more pounds over weight. Thus, if you’re 50 pounds over weight, the NYPD might have incorrectly judged your performance on the coordination tests. Check your body mass index (BMI) to see if you fall within this category:http://www.nhlbisupport.com/bmi/
- Persons over 65 years old: The NHTSA and a majority of States agree that the physical coordination tests are inaccurate when performed by someone 65 years or older.
- Officer didn’t administer tests correctly: The NYPD has very specific guidelines as to how they must administer the coordination tests. If not administered, according to their rules, then the test results can be inaccurate. This is something that an experienced DWI defense attorney will be able to spot immediately.
- Chronic Allergies or Inner-Ear Problems: One of the main reasons that police think a person failed the sobriety tests is because the person lost his or her balance at some point. However, people that suffer from chronic allergies or inner-ear problems often have balance issues. This is due to the fact that their equilibrium is affected by the disorders.
What should I look for in a New York DWI defense attorney?
- Someone you trust: Defending against a DWI charge is a very personal and emotional experience. It is important that the person you hire is a New York DWI defense attorney you can rely on. The last thing you want is to put your future in the hands of someone you can’t trust.
- Experience defending DWIs in the New York Courts: Make sure the attorney has extensive experience defending DWI cases in the New York courts. Due to the fact that most of the evidence is scientific, DWI cases are unlike any other criminal cases. They require the attorney to be well versed in the science and technology behind the breath tests, as well as human physiology. And you want a lawyer who knows his way around the courts of New York.
- Good Relationships with Prosecutors & Judges: Not only is it critical that you trust your attorney, it’s critical that the prosecutors & judges do as well. Retaining an attorney that has a reputation for honesty, efficiency, and fairness in the courts will make all the difference in your case.
- Someone who will listen to you: The most important factor in your DWI defense is you. You know what happened when you were stopped by the NYPD, you are the one who is going to be affected by the results of the case, and you have the final say on how the case should proceed. Therefore, it is essential that you hire an attorney that listens to your opinions and works together with you to ensure the best outcome.
For more questions regarding your DWI case, please feel free to contact The Law Offices of A. Adam Mehrfar at (212) 268-7777.