Driving While Intoxicated
A conviction of DWI in New York can carry a severe and far-reaching impact on the lives of the defendant and his or her family. Such a conviction on one’s record can effect areas as essential to one’s life as employment and housing to government assistance and even impact the standing of professional licensees, such as physicians and attorneys.
Given the wide variety of negative consequences that a conviction of this type can impose, careful and deliberate consideration should be given to all of the options available and the advice of a well-qualified attorney experienced in this area of law is an essential part of the process. Call Mr. Cohen at 718-275-5900 with experience in defending DWI cases in all five boroughs.
Potential areas of weakness in the State’s case:
In any criminal case, there are several areas of that can be exploited in weakening or even eliminating the case brought against the accused. A solid understanding of the these potential weak-spots in defense of a Brooklyn, Queens, Manhattan, Nassau or Suffolk County DWI case provides an opportunity for either removal of the charge or at the very least negotiation of a more positive and less severe outcome in any plea bargain. These areas include:
The legality of law enforcement’s initial stop of the vehicle:
It is unlawful for any law enforcement officer to make a vehicle stop without a valid justifiable reason. Doing so will constitute an unlawful search proscribed by the Fourth Amendment of the United States Constitution. Any evidence obtained as a result of an unlawful search is inadmissible in prosecution of the accused.
While to make an initial stop, the officer is not required to have “probable cause,” the officer is required to have a reasonable suspicion of illegal activity in order to make a lawful stop.
However, if the vehicle is pulled over for any valid reason, any evidence of illegal activity (in this case drunk driving) is admissible for prosecution purposes. That is to say that if the vehicle is pulled over for having an expired tag, and if the officer smell’s alcohol on the breath of the driver, the officer will at that point have a valid reason to conduct a field sobriety test which would be admissible. It is worth mentioning that the stopping the vehicle, even for a valid reason, does not in and of itself provide a valid reason for a search of the vehicle compartments and such a search cannot be legally conducted without the permission of the driver or the owner of the vehicle. It is important that permission be denied to any officer asking to conduct a search of closed compartments of the vehicle. Any such search, if conducted without the permission, constitutes an illegal search and is not admissible in evidence unless the officer has an independent legal reason for conducting such a search.
The most important factor in existence of a reasonable suspicion of driving under the influence of alcohol is the driving behavior of the motorist. Assuming a valid initial stop, the following is an incomplete list of other possible evidence that may be used in giving the officer the right to conduct a more in-depth search (such as a field sobriety test) and in prosecution of the case:
Statements by the Driver;
Statements by passengers and other witnesses;
Open containers in the vehicle;
Slurred speech and other behavior consistent with intoxication by the driver;
Biophysical indications of intoxication, such as glassy eyes and impaired motor functions.
Odor of alcohol or other controlled substances:
Paraphernalia for the use of drugs in plain view of the officer.
In order to prove its case, the prosecution must prove all of the following facts:
Driving or operation of a motor vehicle on a highway or a road while under the influence of alcohol.
Blood Test: Certain types of cases can be subject to a blood test. Blood tests are more accurate, however, since it takes more time to obtain a blood sample, there is more time to metabolize alcohol out of the system before the sample is given. Blood samples are obtained by medical, EMT or other qualified personnel and will be sent for analysis.
Field Sobriety Test: The arresting officer can, and usually will, subject a driver suspected of driving under the influence of alcohol to a field sobriety test. Some of the exercises in conducting this test are:
The horizontal gaze nystagmus (uncontrolled eye movement)
Walk and turn;
One legged stand;
Finger to nose exercise;
Reciting the alphabet exercise.
Special laws regarding DWIs in New York: As of November 19, 2009, New York has enacted the Leandra’s Law which strengthened the penalties against drunk drivers and also requires individuals convicted with a DWI to have in place an ignition interlock device installed on any vehicle they own or operate. This law also increased the penalty for driving under the influence of alcohol or any controlled substance with a child of fifteen or less to an E class felony.
Penalties: The following are the penalties prescribed by the state of New York for drunk driving:
|Violation||Mandatory Fine||Maximum Jail Term||Mandatory Driver License Action|
|Aggravated Driving While Intoxicated (A-DWI)||$1,000 – $2,500||1 year||Revoked for at least one year|
|Second A-DWI in 10 years (E felony)||$1,000 – $5,000||4 years||Revoked for at least 18 months|
|Third A-DWI in 10 years (D felony)||$2,000 – $10,000||7 years||Revoked for at least 18 months|
|Driving While Intoxicated (DWI) or Driving While Impaired by a Drug (DWAI-Drug)||$500 – $1,000||1 year||DWI-Revoked for at least six months DWAI-Drugs – Suspended for at least six months|
|Second DWI/DWAI-Drug violation in 10 years (E felony)||$1,000 – $5,000||4 years||Revoked for at least one year|
|Third DWI/DWAI-Drug violation in 10 years (D felony)||$2,000 – $10,000||7 years||Revoked for at least one year|
|Driving While Ability Impaired by a Combination of Alcohol/Drugs (DWAI-Combination)||$500 – $1,000||1 year||Revoked for at least six months|
|Second DWAI/Combination in 10 years (E felony)||$1,000 – $5,000||4 years||Revoked for at least one year/18 months|
|Third DWAI/Combination in 10 years (D felony)||$2,000 – $10,000||7 years||Revoked for at least one year/18 months|
|Driving While Ability Impaired by Alcohol (DWAI)||$300 – $500||15 days||Suspended for 90 days|
|Second DWAI violation in 5 years||$500 – $750||30 days||Revoked for at least six months|
|Third or subsequent DWAI within 10 years (Misdemeanor)||$750 – $1,500||180 days||Revoked for at least six months|
|Zero Tolerance Law||$125 civil penalty and $100 fee to terminate suspension||None||Suspended for six months|
|Second Zero Tolerance Law||$125 civil penalty and $100 re-application fee||None||Revoked for one year or until age 21|
|Chemical Test Refusal||$500 civil penalty ($550 for commercial drivers)||None||Revoked for at least one year, 18 months for commercial drivers.|
|Chemical Test Refusal within five years of a previous DWI-related charge/Chemical Test Refusal||$750 civil penalty||None||Revoked for at least 18 months, one-year or until age 21 for drivers under age 21, permanent CDL revocation for commercial drivers.|
|Chemical Test Refusal – Zero Tolerance Law||$300 civil penalty and $100 re-application fee||None||Revoked for at least one year.|
|Chemical Test Refusal – Second or subsequent Zero Tolerance Law||$750 civil penalty and $100 re-application fee||None||Revoked for at least one year.|
|Driving Under the Influence (Out-of-State)||N/A||N/A||Revoked for at least 90 days. If less than 21 years of age, revoked at least one year.|
|Driving Under the Influence (Out-of State) with any previous alcohol-drug violation||N/A||N/A||Revoked for at least 90 days (longer term with certain prior offenses). If less than 21 years of age, revoked at least one year or until age 21 (longest term).|
- greater penalties can also apply for multiple alcohol or drug violations within a 25-year period
- surcharges are added to alcohol-related misdemeanors ($260) and felonies (generally $400, but varies slightly depending on court of conviction)
- three or more alcohol or drug-related convictions or refusals within 10 years can result in permanent revocation, with a waiver request permitted after at least 5 years
- A driver with an Aggravated DWI violation conviction within the prior 10 years will receive a minimum 18-month revocation if convicted of DWI, DWAI/Drugs or DWAI/Combination. Also, a driver with a prior DWI, Aggravated DWI, DWAI/Drugs or DWAI/Combination with the prior 10 years will receive a minimum 18-month revocation
Mr. Cohen has represented hundreds of clients on DWI and DUI matters and successfully challenged alcohol tests such as the Portable Breathe test and Intoxilyzer examination.