Articles Posted in DWI Topics Of Interest

The holidays are always a time for peak DUI enforcement, as police take to the streets with the assumption that party goers will be driving under the influence. And, to a certain degree, the police are not wrong. The fact is, drunk driving is more common over the holidays, this is especially the case in years like this year, where Christmas Eve and New Year’s Eve fall on a Friday. However, just because you were arrested for a New York DWI does not mean that you will be found guilty. There are many defenses available in a DWI case; it’s just a matter of determining which one best fits your case.

One of the most successful defenses to a DWI case is a motion to suppress any evidence recovered as a result of an illegal stop. At almost every stage of a criminal investigation, police officers must possess some evidence that the person they are investigating committed a crime. For example, before a police officer can pull over a driver, they must have reasonable suspicion that the driver committed a crime or probable cause to believe they committed a traffic violation. In the context of a DWI, this is often some type of dangerous driving. Once a police officer pulls a driver over, however, they must respect the driver’s constitutional rights to be free from unreasonable searches and seizures. Thus, it is only if the officer develops probable cause that the driver was under the influence that they can arrest the driver for DWI. Some of the factors that police rely upon when making this determination include:

• Red or bloodshot eyes,

If you were pulled over on suspicion of drinking and driving, and you refused to submit to a chemical test, you may face serious consequences. At the Law Office of Mark A. Siesel, our New York DWI defense team understands how to handle refusal hearings and protect your rights at every step of the way.

New York State’s Vehicle and Traffic Law requires any person who operates a motor vehicle to take a blood, breath, urine, or saliva test to help law enforcement determine the alcohol or drug content in the person’s blood. In other words, under New York’s “implied consent” law, a driver who is arrested for an alcohol-related offense must submit to a chemical test.

If you are pulled over for a DWI in New York, and you refuse to take a breathalyzer test or chemical test, you may be subject to a DWI refusal hearing. Put another way, you can refuse to take a breathalyzer test, but there will be consequences. If a driver refuses to submit to a chemical test, he or she must be given a specific refusal warning.

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When operating a motor vehicle in the state of New York, drivers give their acceptance to provide a sample of their blood, breath, urine or saliva if requested to do so during the course of a valid traffic stop for a violation of the Vehicle & Traffic Law. If you are stopped by a police officer for a lane violation, for example (swerving between two lanes) or operating the car erratically, the officer is likely to ask you if you have been drinking anything of an alcoholic nature. Regardless of your response to that question, the officer can then ask you to blow into a device known as an “Alco-sensor.” If you do and the reading is positive, the officer has probable cause to arrest you for Driving While Intoxicated.

What if you refuse to provide a breath, blood or urine sample? If you do so, you can still be arrested for DWI , based upon the officer’s observations of your walking, the color of your eyes, an odor of alcohol on your breath, or other “field Sobriety tests” which the officer can request that you perform, such as standing on one leg, or reciting the alphabet or counting backwards and forwards. However, in addition to the arrest for DWI, if you refuse to provide a breath or other chemical sample, you will now be charged with a “refusal to take a chemical test”, which is an administrative, not criminal infraction, with different but no less onerous implications.

A refusal to take a chemical test in Westchester County, for example, will result in a hearing at the Department of Motor Vehicles in Yonkers, within two weeks of the arraignment in the criminal case, in which the DWI case against you will be heard. The refusal hearing, which is generally held on a Monday or Wednesday afternoon, is conducted by the one administrative judge on staff in Yonkers, Walter Zulkowski. Generally, most people are represented by an attorney at these hearings, and for a very good reason. Although this is not a criminal proceeding, if you are found to have refused the chemical test, your license to operate a motor vehicle will be revoked for one year, and for 18 months if you have a commercial driver’s license. Obviously, for drivers of taxis, buses or trucks, a finding of a refusal to take a chemical test can be devastating as it is likely to lead to losing his or her employment for a year and a half, although there might be a possibility of maintaining some form of conditional license for non-commercial operation of a vehicle.

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If you ask the average motorist, he or she would probably tell you that the night of the year when there are the most drunk drivers would be either New Year’s Eve, Super Bowl Sunday or possibly Thanksgiving Eve. In fact, Halloween night is one of the worst nights annually for DWI’s, and more particularly, fatalities involving drivers who are above the legal limit of 0.08% and strike pedestrians. According to the National Highway Traffic Safety Administration, (NHTSA), 50% of fatal motor vehicle accidents on Halloween involve drivers who are intoxicated.

Intoxicated drivers generally account for approximately 30% of fatal car crashes in the U.S.   Between 2005 and 2012, 166 people died on Halloween as the result of accidents in which the driver was above the legal limit. Enforcement is more challenging in 2014 as drivers will notify other motorists of the location of sobriety checkpoints. The NHTSA recommends several safety measures on Halloween night, (which would apply for pedestrians who do any nighttime walking regardless of the night) including:

1. Wearing reflective clothing;
2. Using a flashlight;
3. To the extent possible, crossing the street in a crosswalk;
4. Walking on well-lit roads whenever available.

Under the New York State Vehicle & Traffic Law, a driver who is convicted of a non-felony DWI faces the following fines and sanctions;

1. Fines with mandatory New York State surcharge totaling approximately $900.00;
2. Mandatory screening and potential treatment for alcohol abuse;
3. The requirement to install and maintain an ignition interlock in any vehicle he or she owns or has access to;
4. Necessity to attend one session of the MADD Victim’s Impact Panel;
5. The requirement to attend the seven week Drinking Driver’s Program sponsored by the New York State Department of Motor Vehicles at the conclusion of the case;
6. Payment of the $750.00 “Driver’s Responsibility Assessment” from the DMV, which can be paid in three annual installments of $250.00 or in one payment. Failure to pay the DRA results in a license suspension;
7. Revocation of the driver’s license (or driving privileges if the one charged has an out of state driver’s license) for 6 months on a first conviction.

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The National Transportation Safety Board (NTSB) has recommended that states reduce the legal limit of intoxication from a blood alcohol content (BAC) of 0.08% to 0.05%. Presently, all 50 states in the United States have a uniform legal BAC of 0.08%, meaning that a driver cannot be convicted of driving while intoxicated unless they have a BAC of 0.08% or above. In New York State, if a motorist has a BAC of 0.05% to 0.07%, they can be charged with driving while ability impaired, (DWAI), which is a traffic infraction, not a crime. If an operator has a BAC of 0.18% or above in New York, they can be charged with Aggravated DWI, (a misdemeanor) which went into effect in 2010.

THE NTSB can only make recommendations, and has no legal power. In making its recommendations, it refers to the fact that on an annual basis, approximately 10,000 people die in alcohol related traffic crashes, and 170,000 people are injured. This is a significant improvement from 30 years earlier, when there were about 20,000 deaths from alcohol related accidents. Studies have noted that approximately 4 million people acknowledge driving while they are under the influence of alcohol. Presently, the U.S., Canada and Iraq are among the few countries that have instituted a legal limit for intoxication at 0.08%. In contrast, Russia, South American, Australia, and the majority of European countries have set the legal limit at 0.05%. Apparently, Australian provinces saw a reduction of 5-18% in traffic deaths when the legal limit was reduced to 0.05% from 0.08%.

There will certainly be a huge amount of lobbying against a reduction of the legal limit of intoxication by representatives of restaurants, clubs, bars and other service industries. In fact, the American Beverage Institute has already noted its opposition to a reduction, stating: “Moving from 0.08 to 0.05 would criminalize perfectly responsible behavior…further restricting the moderate consumption of alcohol by responsible adults prior to driving does nothing to stop hardcore drunk drivers from getting behind the wheel.” This argument is similar to that made by opponents of gun control such as the NRA, which has been quite successful in its’ efforts to limit any form of restrictions on gun ownership.

The NTSB contends that the reduction could save up 1,000 deaths a year if the 0.05% standard was adopted in all fifty states. The Board states that at 0.05% BAC, some drivers have difficulties with depth perception and their vision in general, and at 0.07%, judgment and cognitive abilities can be impaired. It is important to note that the previous effort to reduce the legal intoxication rate from 0.10% to 0.08% took 21 years to be adopted in all fifty states, commencing with Utah in 1983 and ending with all fifty states implementing the 0.08% level in 2004.

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In an article on the New York Times this week, Dan Frosch reports about New Mexico’s aggressive efforts to fight DWI in that state. In 2011, New Mexico had the eighth highest fatality rate in the United States for alcohol-related accidents. This was an improvement from 10 years earlier, when New Mexico had the fourth most fatal accidents due to alcohol involvement. North Dakota leads the U.S. in fatal accidents as a result of intoxication.

The New Mexico legislature has now introduced a bill which would prevent anyone with a DWI conviction from buying alcohol anywhere in the State, including stores, bars and restaurants. If the law is implemented, it would be ranked as one of the most restrictive DWI laws in the country. In 2005, the New Mexico legislature passed an ignition interlock law, which mandates that drivers convicted of DWI install and maintain an ignition interlock device (IID) in their cars for at least one year. The IID prevents the vehicle from starting unless the driver has a BAC (blood alcohol concentration) of almost zero (many people have a small percentage of mouth alcohol naturally or may have used an alcohol based mouthwash) so the device is generally calibrated to detect a BAC above about 0.02%; the legal limit, here in New York and in New Mexico, as in most states in the nation, is 0.08%.

If the New Mexico DWI alcohol prohibition law passed, drivers with ignition interlocks would be issued a specially devised license noting that they are prohibited from buying alcohol. The legislation received overwhelming support in the New Mexico House of Representatives, passing by a vote of 59-5. It will now be ruled on by a state senate committee. Alaska is another state that has the alcohol prohibition regulation, and a DWI offender has his or her state identification marked. The National Conference of State Legislatures notes that approximately half of U.S. states monitor those with drunken driving convictions for alcohol consumption as part of a sentence, often through the use of an ankle bracelet.

In many jurisdictions, it is difficult to enforce the IID sentence, as drivers circumvent the requirement by claiming they are not driving when they are, contending they don’t own a vehicle when they do, or requesting that someone else blow into the device to get the car to start. In New York, there are specific measures to prevent someone convicted of DWI from disregarding the IID device. For example, the driver must utilize the device to start the vehicle, and then continue to blow into the IID in regular intervals of every 15-20 minutes to keep the car running, known as “rolling retests”. If the driver fails the retests, the ignition will cut off and in some devices, the car’s horn will begin to sound or headlights flash to alert police to the fact that the driver should not be operating his or her vehicle. Further, some IID’s have video, so that a driver who attempts to have someone else blow in the device will be discovered, and if this is the case, both the sentenced driver and the accomplice will face criminal charges.

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When clients are charged with DWI in Westchester County, it is well known among defense attorneys that a blood alcohol concentration (BAC) of 0.15% or above is the cutoff which the District Attorney’s Office uses when determining whether they will offer a plea bargain to a lesser charge. Inotherwords, if the client’s BAC is above at a 0.15% or above, the Westchester DA’s Office is not willing to negotiate the DWI charges. A DWI is charged if the driver’s BAC Is 0.08% or above. Obviously, this BAC, without taking any other factors into consideration, seems arbitrary, but this does not change the fact. In essence, even if the client has never had a DWI previously, has a clean record, was not involved in a properly damage or personal injury accident arising out of the DWI and was completely compliant with the police officers investigating the DWI, the 0.15 BAC takes the case out of the negotiation category and places it firmly in the “as charged” section. Thus, a client is not eligible for a reduction to a DWAI (Driving While Ability Impaired), which is a traffic infraction, and not a crime, as is the DWI.

This policy has significant implications for clients for a variety of reasons. First, if the client is not eligible for a reduced charge and cannot afford to go to trial, they are facing a criminal record for a guilty plea to the DWI, which would be averted if they could plead to the DWAI. Obviously, this has a huge impact when it comes to employment applications and applications for college and other educational opportunities.

Secondly, most recently, on DWI pleas, the District Attorney’s Office now will request, (although not on every case from what I have seen, that the defendant be sentenced to probation, rather than a conditional discharge, which is a huge difference. On a conditional discharge, once the client has attended Court mandated programs including the MADD Victim Impact Panel, the Drinking Driver Program, and any Court mandated counseling, they have essentially completed their sentence. Conversely, if a client is sentenced to probation, they must report to a probation officer for three years on a misdemeanor DWI, and probation, not the Court, determines when the person is eligible to get their driving privileges back and when or if they can travel.

Third, on a DWI charge, the defendant must install and maintain, at their own cost and expense, an ignition interlock device (IID) in any car that they own or have access to for one year (although the law requires for at least 6 months, judges are routinely ordering defendants to keep the IID in their vehicles for one year).

Fourth, on a DWI, the defendant’s license is revoked for six months, and then the driver must apply to the DMV to be reinstated, which is not automatic. In contrast, on a DWAI conviction or plea, there is a 3 month suspension of the driver’s license, and upon payment of the required reinstatement fee, assuming that the person has completed the required attendance at the DDP and VIP, they will be reinstated to their original driver’s license.

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