Articles Posted in DWI A to Z

During Fourth of July weekend in 2021, New York State Police officers issued 10,238 tickets during its holiday weekend enforcement campaign. Governor Andrew Cuomo explained that this ticketing by law enforcement officials saved numerous lives across the state. The special enforcement period was Friday, July 2 – July 5, 2021.

The campaign used a range of measures to stop drunk or reckless holiday driving. These measures included sobriety checkpoints, along with ticketing of distracted drivers and reckless driving. During the campaign, 648 crashes were investigated. In the course of these crashes, there were 2 deaths and 122 injured accident victims. State troopers arrested 195 drivers for driving while intoxicated. They arrested 3955 drivers for speeding violations and 202 drivers for distracted driving violations, such as looking at a phone while driving. There were 671 violations involving failure to wear a seatbelt. For comparison, 8214 tickets were issued in the 2020 Fourth of July holiday enforcement campaign with 180 arrests for DWI.

Types of traffic arrests over the holiday weekend can also be broken down by different troops in the Hudson Valley. For example, there were 1319 traffic tickets issued by Troop F. The same troop had 17 DWI violations and 425 speeding violations.

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This summer, a driver who was traveling at three times the legal limit was pulled over during a holiday weekend on I-287 in Harrison, New York. Although he was pulled over because of a traffic violation, the police quickly figured out he was intoxicated. After wholly failing field sobriety tests, he was required to take a chemical test at the precinct. Once the police brought him into custody, he was tested. His blood alcohol content was 0.27%. Prosecutors charged him with aggravated driving while intoxicated (DWI).

Blood alcohol content (BAC) of 0.27% is exceptionally high — more than three times the legal limit. While prosecutors can charge you for being over the legal limit if you operate a motor vehicle with a BAC of .08 or higher, you can be charged with aggravated DWI if you drive with a BAC of 0.18% or higher. In this case, the chemical test showed the driver had a far higher blood alcohol content than the minimum used to charge aggravated DWI.

You should be aware that the penalties for aggravated DWI are harsh. If you are convicted of aggravated DWI, you could be jailed for one year and fined $1000-$2500. But jail time and fines aren’t the only potential consequences. Your driver’s license could be revoked for at least one year. You will be ordered to participate in a MADD victim impact panel. Additionally, the court will order substance abuse treatment through, among others, Treatment Alternatives for Safer Communities (TASC), a state-run agency. Initially, TASC will ask questions to determine your treatment needs in connection with drug and alcohol use. You will then be referred to a program to be provided treatment.

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New York DWI law identifies multiple levels of offenses involving motor vehicles and alcohol or drugs. Most first-time offenses are classified as traffic infractions, which are generally subject to lesser penalties than criminal offenses. If an individual has one or more prior convictions during the previous ten years, however, New York may treat a subsequent offense as a felony. Penalties could include several years’ imprisonment, substantial fines, and a lengthy period of license suspension. A felony DWI conviction in New York may also require completion of a drug or alcohol addiction program, along with classes offered by Mothers Against Drunk Driving (MADD).

The New York DWI statute divides the offense into five offenses, based on the substance involved and the extent of impairment:
– Driving while ability impaired (DWAI): Operating a motor vehicle while impaired due to alcohol consumption. This could involve blood alcohol content (BAC) below the “legal limit” of 0.08 percent, but usually greater than 0.05 percent.
– Driving while intoxicated (DWI): Driving “while in an intoxicated condition,” or with BAC of 0.08 percent or more. For commercial vehicle drivers, the limit is 0.04 percent.
– Aggravated DWI: Driving with BAC of 0.18 percent or higher.
– Driving while ability impaired by drugs (DWAID)
– Driving while ability impaired by the combined influence of drugs or alcohol (DWAI-Combination)

Most offenses are classified as traffic infractions or misdemeanors. Certain offenses, however, are classified as felonies. A second conviction for DWI, aggravated DWI, DWAID, or DWAI-Combination within a period of ten years is an E felony. This is punishable by up to four years in jail, a fine of $1,000 to $5,000, and driver’s license suspension for a minimum of one year. For a second aggravated DWI conviction, the minimum period of license suspension is eighteen months.
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The National Highway Traffic Safety Administration (NHTSA) released a study recently which evaluated DWI deaths across the United States. The report is entitled “Prevalence of High BAC in Alcohol Impaired Driving Fatal Crashes”. The research was conducted in conjunction with an annual nationwide crackdown on DWI, which commenced on August 17th and will continue through the Labor Day holiday. The program, known as “Drive Sober or Get Pulled Over”, involves 10,000 police departments and law enforcement organizations.

NHTSA reports that the most commonly reported BAC (blood alcohol concentration) for drivers involved in DWI fatalities in 2010 was 0.18, which is more than double the legal limit of 0.08, which has been uniformly adopted across the U.S. There was approximately 1 DWI death every 51 minutes in 2010. 10,228 people were killed in the U.S. in alcohol impaired accidents in 2010, which constituted 31% of the total fatal car crashes that year. Of the 10,228 deaths, 65% were drivers with a BAC of 0.08 or more, 28% were passengers and 7% were non-occupants struck by the impaired driver. There was a reduction in the number of DWI traffic fatalities in 2010 from 2009, when there were 10,759.

In an examination of the drivers involved in the fatal car accidents, NHTSA found that drivers ages 21-24 were the most likely to be intoxicated, at 35%, followed by drivers ages 25 to 24 (30%), and then drivers ages 35-44 at 25%. The most common vehicles involved in the fatal accidents with drivers with a BAC of 0.08% or more were motorcycles at 28%, passenger cars at 23% and light trucks at 22%. The least frequent type of vehicle involved was large trucks at 2%.

NHTSA has been a prime mover behind an initiative to get all 50 states to institute an ignition interlock device (IID) system for first time drivers convicted of or pleading guilty to DWI. Recently the U.S. Congress approved a twenty million dollar program which would provide the states with additional monies if they implement the mandatory IID program. 17 U.S. states have such laws presently, with Missouri and Virginia the most recent states to add the IID laws. California has begun to institute mandatory IID for first time offenders in four counties, including Los Angeles.

In November of 2009, as part of Leandra’s Law, New York instituted the mandatory ignition interlock requirement for all drivers convicted of DWI, aggravated DWI, or felony DWI. The only drinking driving offense which does not require the installation of an interlock is for drivers convicted of DWAI, (driving while ability impaired), which is a violation, not a crime, and which involves operators with a BAC between 0.05% and 0.07. The IID must remain in the person’s vehicle for at least one year, they must pay for the monthly maintenance of the device (unless the defendant can prove to the Court that they are not financially capable of paying the costs and the County will then pay for the IID), and the device must be installed in all vehicles that the person either owns or operates.

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When charged with any drunk driving offense, under the New York Vehicle And Traffic Law, the driver’s license of the defendant will be suspended at the arraignment, under the policy of “suspension pending prosecution.” Essentially, what this means is that regardless of whether the DWI charges are eventually proven or not, the person’s driver license is suspended on the first Court appearance in the case. Obviously, this presents a significant problem for people who must drive themselves to work, school, or medical treatment and have no viable alternative means of travel due to logistics or finances.

Under certain circumstances, the Court may permit the driver to obtain what is known as a “hardship privilege” or hardship license under Section 1193 (2) (e) (7) of the Vehicle & Traffic Law. A hardship license will only be granted by the Court after a “Hardship Hearing” is conducted by the presiding Judge, which by law must be held within three days of the arraignment date. In order to obtain the hardship license, the motorist must show that he or she has no alternative means of travel to and from work, school, or necessary medical treatment, and that the lack of such a license would impose an “extreme hardship” (a moderate hardship is not sufficient) on the defendant.

To substantiate the need for the hardship privilege, the Court takes testimony from the driver, who must have proof of where they work and live, and establish that they have no nearby relatives, friends or co-workers who could drive them where they need to go while the DWI case is pending in Court. The Court also requires proof of extreme financial hardship, including pay checks or other proof of salary, as well as evidence as to what the cost and/or availability of buses, trains or taxis would be if the driver was required to use these means of travel. Additionally, a friend, relative, or co-worker must be in Court to corroborate the testimony of the defendant.

If the hardship license is granted, it will be effective only for the specific days and hours that the driver testifies that he or she requires their car for round trip transportation to work, school or for medical treatment. The hardship license is not to be used for travel to non-essential locations such as to a restaurant, friend’s house or the mall. If the driver is caught using the hardship license for non permitted uses, this will result in the termination of the privilege and possible other sanctions by the Court.

A hardship license is also not available to commercial license holders, to defendants who have refused a chemical test such as a breathalyzer, or to drivers who have had a previous DWI charge within the last five years.

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Frequently, when our clients are arrested for DWI, they will receive multiple tickets from the arresting officer, and there will be more than one DWI charge. One question the client has is: Why was I charged with multiple counts of DWI? This article will address that question.

Under Section 1192 (2) of the New York State Vehicle & Traffic Law, also known as the per se statute, a motorist can be found guilty of DWI “per se” as follows:
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…”

Therefore, in order to be able to prove that a motorist is intoxicated under the per se DWI statute of 1192 (2), the prosecution must have either a blood test, breathalyzer or urine sample which establishes that the person had at least 0.8% of alcohol in their system simultaneously with their operation of a motor vehicle. Realistically, although the statute also provides for proof of intoxication through a saliva sample, this is very infrequent, and in this writer’s experience, has never been the basis for a DWI charge under V & T 1192 (2).

The New York State Legislature provided for situations in which there is no laboratory proof of driving while intoxicated, such as cases in which the driver refuses to take a chemical test, or for some other reason a test is not performed, or is not admissible in Court. This alternative DWI charge is known as “Common Law DWI”, and is found under Section 1192 (3) of the Vehicle & Traffic Law.

1192 (3) states: “No person shall operate a motor vehicle while in an intoxicated condition.”

The reason investigating officers will issue tickets for both per se DWI under 1192 (2) and common law DWI pursuant to 1192 (3) is to account for the possibility that the per se DWI charge will not be substantiated, due to some evidentiary issue with the blood, breath or urine sample. Further, in cases of a refusal, there is no legal basis to charge the driver with 1192 (2) since no breath, blood or urine is available for testing.

Common law DWI can be established by the investigating officer’s observations of the driver performing Field Sobriety Tests, including the walk and turn or one leg stand. Additionally, the officer can testify to his or her observations of the motorist’s operation of their motor vehicle, impaired motor coordination, slurred speech, disheveled appearance, demeanor, or odor of alcohol on their breath or body, among other factors.

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When arrested for a DWI, a motorist will be asked by the investigating police officer to perform a series of tests which are commonly known as SFST, or standardized field sobriety tests. The three tests that are generally required are the walk and turn, the one leg stand, and the horizontal gaze nystagmus, also referred to as HGN. This post will focus on the HGN.

Nystagmus is an involuntary jerking of the eyes, and can be caused by a number of factors, some having to do with the ingestion of substances or alcohol, but some due to medical reasons. For example, nystagmus can be due to a brain injury or tumor, an inner ear disorder, or impairment due to use of alcohol or drugs. The HGN is performed by the officer using a penlight or other stimulus, and the stimulus is placed just above eye level and 12-15 inches from the nose. The officer then requests that the person follow that stimulus with their eyes, while looking for evidence of nystagmus.

According to the National Highway Traffic Safety Administration Manual, if the nystagmus test is failed by the motorist, (four or more clues are seen) this is proof that the driver has a blood alcohol concentration of .10% or above in 77% of cases. The HGN is deemed to be the most reliable of the SFST’s, with the walk and turn being 68% reliable, and the one leg stand at 65% reliability.

As with other field sobriety tests, the design of the “divided attention” tests is twofold: to determine coordination and whether the motorist can follow directions, checking both at the same time. The theory is that if the person is impaired, they may be able to follow instructions, or perform the test, but not both. The HGN is not a true coordination test as are the walk and turn and one leg stand, which involve balance, concentration, and coordination, since HGN is in fact a physical reaction which cannot be controlled by the person.

The officer gives the following instructions in sum or substance: “I’m checking your eyes. Keep your head still and follow the stimulus with your eyes only. Follow the stimulus until I tell you to stop. Have you understood all of the instructions I’ve given you?”

The three parts to the nystagmus test are:

The person is asked to follow the stimulus first with each eye, and the officer is looking for the clue of what is known as “lack of smooth pursuit”, meaning that the eye begins to jerk as it is following the stimulus to the left and right;
The person is required to follow the stimulus to what is known as “maximum deviation”, or as far to the left and to the right as they can. After four seconds, if there is distinct nystagmus, this is the second clue of intoxication according to the test;

The person follows the stimulus and nystagmus begins at a 45 degree angle. This is the third clue purporting to establish intoxication. Supposedly, the more impaired the person is, the sooner the nystagmus will be noticeable.

The HGN is not evidence of the BAC (blood alcohol concentration) of the motorist, but rather is offered by the prosecution as proof of impairment, along with the other field sobriety tests and chemical test results if a breathalyzer, urine or blood was taken from the driver.

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When you are arrested for a New York DWI, chances are very good that the officer who arrested you received his training at the police academy, and that that training involved classroom study of the National Highway Traffic Safety Administration (NHTSA) manual in DWI detection and standardized field sobriety testing (SFST).

Before a police officer can stop your vehicle on suspicion of a DWI, he must have “reasonable suspicion” to believe that you are operating the vehicle while intoxicated. In New York, driving while intoxicated is established if your blood alcohol concentration (BAC) is 0.08% or above. Generally, reasonable suspicion can be based upon a moving violation, equipment violation, expired registration, unusual driving, or alcohol/drugs in your car.

There are numerous examples of either moving violations or erratic driving that are likely to get a motorist pulled over on suspicion of DWI. Weaving between lanes, or even moving back and forth within the lane is one example. Straddling the lane line, or turning with a wide radius are others. Stopping abruptly or at an inappropriate location, such as well before the red light (or just after the light) are other red flags for the officer.

Driving without headlights at night or with broken tail lights are likely to get an officer’s attention quickly, as are inappropriate behaviors such as throwing objects out of the vehicle, gesturing erratically, slouching in your seat or having your face close to the windshield.

Once you observe the flashing lights from the police cruiser and are required to pull over, be aware that everything you do is being scrutinized along a checklist. The officer is noting how you stopped the vehicle: was it jerky, abrupt, too far from the curb, striking the curb, or in some other manner abnormal? When the officer approaches the vehicle, he or she will be observing how you open the door or open the window, and then will ask for the license and registration. Special attention is paid to how you obtain the documents–are your fumbling with your wallet or having difficulty getting papers from the glove compartment? When the officer asks questions, he or she is noting whether you repeat the questions or respond in a slurred or other unclear fashion. Not surprisingly, the officer will be trying to detect if you have an odor of alcohol emanating from your body or on your breath.

Frequently, you are then asked to step out of the vehicle, and once again, you are on display. Are you swaying, staggering or having difficulty with your balance? Did you use the door or other part of the vehicle to stabilize yourself or maintain your balance? If the officer suspects based on his observations to that point that you are intoxicated, it is at this time that you will be asked to take what are known as standardized field sobriety tests, which generally speaking, are the walk and turn, HGN (Horizontal gaze nystagmus), and the one leg stand. We will provide an analysis of these three tests in separate post, but in summary, the walk and turn is a test in which you are asked to walk nine steps heel to toe along a designated straight line, turn on the same line, and then walk 9 steps back heel to toe along that same line, without losing your balance and remaining heel to toe. HGN is a test in which the officer holds either a stimulus (a pen, for example) 12-15 inches in front of the person’s nose, and moves the stimulus left and right, checking for involuntary jerking of the eyes, which is supposed to connote intoxication. Lastly, there is the one leg stand, in which the person is asked to hold one leg out 6 inches off the ground, and stand on one leg for thirty seconds without losing their balance, and without being able to use their arms for balance.

If you fail one or more of the field sobriety tests, it is likely that you will be asked to take a preliminary breath screening test, (which can show intoxication but is not admissible in Court) and ultimately, a chemical test of your breath, blood or urine, but the latter test will be conducted at the precinct. We will also discuss the chemical test in a separate post.

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If you are convicted of a New York drunk driving charge, such as an Aggravated DWI, DWAID (driving while ability impaired by drugs), or a DWAI, in addition to any Court mandated fines, fees, penalties and surcharges, the New York State Department of Motor Vehicles (NYSDMV) taxes all motorists $750.00 for this conviction. The Driver Responsibility Program was instituted in November of 2004 with the stated purpose of preventing repeated DWI’s or traffic infractions.

The assessment is $750.00 and will also be imposed for a refusal to take a chemical test such as a breathalyzer, including for boats and snowmobiles. The fine can be paid in one installment or in three annual payments of $250.00.

There is also an assessment if the motorist gets 6 or more points on his or her license within a 18 month period. In those cases, the assessment is $300.00, with payment all at once or in annual payments of $100.00. Each additional point within the 18 month period adds on $75.00 for the three years.

Driver responsibility assessments are imposed on all drivers in the state of New York, regardless if they have a New York driver’s license. Failure to pay the assessment will result in a suspension of the motorist’s driver license, learner’s permit or driving privileges for out of state drivers.

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We represent many clients who are charged with driving while intoxicated and a refusal to take a chemical test. Many of these clients were charged with a refusal since they did not understand the difference between 1) what is known as a “Breath Screening Test” (BST), which is used at the scene of an arrest, and is often called an “Alco Sensor”, and 2) the breathalyzer test or other chemical test which the arresting officer requests that the client undergo once they have been placed under arrest and taken to the precinct.

Simply put, the breath screening test is an unscientific test which the officer requests that the client take in order to have probable cause to make the DWI arrest. However, this test, since it is not scientific, is not admissible in Court. Thus, the arresting officer will request that the client take a breathalyzer, or other chemical test of blood, urine or saliva, at the precinct, which is admissible in Court and forms the evidentiary basis for proving a DWI case in Court. Of course, the officer never explains the distinction between the non admissible BST that the client took at the scene, as opposed to the scientific and admissible Breathalyzer which the client is requested to take at the precinct.

Inevitably, and to the client’s dismay and surprise, when the client responds to the request: “Will you agree to take a chemical test of your breath at this time?” with an “I already took the breathalyzer earlier”, the officer never explains the distinction between the tests–and thereafter, when the client does not take the breathalyzer thinking they have already done so, they are charged with a refusal.

The Refusal to take a chemical test is not a crime as is a DWI or Aggravated DWI, but it carries with it enormous implications for the client’s driving privileges, fines, and ability to resolve the criminal case. If found guilty of a refusal to take a chemical test at the Administrative hearing before a Department of Motor Vehicles judge, there is an automatic one year revocation of the client’s license, fines which are generally at least $1,000.00, and the client is now not eligible for a “20 day stay” at the end of the DWI case in order to more quickly get their “conditional license” which allows them to drive to and from work, doctor’s appointments, to pick up children from day care or for emergencies.

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