Driving While Intoxicated In New York
If you are charged with an alcohol or drug related offense—whether in a car, on a motorcycle, ATV, or other motor vehicle—there may be a serious impact on your driver’s license, your employment, and even your freedom. You likely have many questions and will need to understand many complicated issues that can result from an alcohol or drug related driving offense. New York state DWI laws are complex and each case has its own unique challenges. Your specific facts should be thoroughly reviewed in detail with a qualified and experienced DWI attorney familiar with the DWI laws in New York.
Frequently Asked Questions about DWI
Our criminal defense lawyers provide answers to some important questions below.
- Breath Test Refusal
- Conviction For DWI Or DWAI
- Drinking And Driving Under 21
- Driving While Under The Influence Of Drugs
- DWI And Commercial Driver’s Licenses
- DWI And DWAI Alcohol Offenses
- Initial Questions After A DWI Arrest
Be wary of advice that says “never” or “always” submit to this test. There are numerous factors to consider when determining if a client should take a breathalyzer test or refuse the test. The important questions include:
- Whether you have a prior conviction for driving while intoxicated
- How many alcoholic beverages you’ve consumed
- Whether there was an accident
- Whether anyone was injured in an accident
- When the last alcoholic drink was consumed
- The county where you were arrested
All of these factors must be considered before a DWI lawyer can give advice about taking a breathalyzer test.
The consequences of refusing to take a breath test depends on what type of test you refused. If you refused to take a portable breath screening test (PBST), which is a handheld device most commonly administered at the time of the stop, this is simply a traffic ticket for which you may be fined by the court. On the other hand, if you refuse to take the breathalyzer test back at the police station, this is known as a chemical test refusal. A refusal to take a chemical test will result in the immediate suspension of your license or operating privilege at your first court appearance. However, you are entitled to a Department of Motor Vehicle (DMV) administrative refusal hearing within 15 days of your arraignment in court. If, at the DMV hearing, a judge determines you refused to take the test, your license will be revoked for 1 year and you will receive a DMV civil penalty of $500. If you have previously refused a chemical test your license will be revoked for at least 18 months and the DMV will impose a civil penalty of $750. You will also be responsible for a Driver’s Responsibility Assessment which is $750. This can be paid one time, or in three installments of $250.
Yes. The breath test administered at the side of the road is not a calibrated instrument and is only used to help establish probable cause for an officer to make an arrest. This breath test is called a “Portable Breath Screening Test” (PBST). If you refuse to take the PBST, you will be issued a traffic ticket only. Refusing to take the PBST will not result in a suspension of your license or driving privilege. On the other hand, the breath test administered at the police station, is a calibrated breath test instrument which will provide evidence to be used at a trial. If you refuse to take this test, your license or operating privilege will be suspended and potentially revoked for at least 1 year. Whether you should take either of the breath tests depends on a number of factors including the amount of alcohol consumed, over what period of time it was consumed, the county you are in, whether or not there was an accident, and whether or not you have any prior convictions for DWI or DWAI.
At a department of motor vehicles refusal hearing a judge will hear testimony from the arresting officer regarding your arrest. You may also testify, although you are not required to. This is a decision you should make with your DWI Lawyer. At a refusal hearing, the judge must consider the following:
- Did the police have reasonable grounds to believe that you were driving while under the influence of alcohol?
- Did the police make a lawful arrest?
- Were you given clear and sufficient warning that your refusal to submit to a chemical test would result in the immediate suspension and subsequent revocation of your license?
- Did you refuse to take the test?
If the Judge answers yes to all these questions, your license will be revoked for a minimum of 1 year and you will also be required to pay a DMV penalty of at least $500. If the judge answers “no” to any of these questions, your license will be returned.
Yes. It is highly recommended that you retain a lawyer to represent you at a refusal hearing. Although this is an administrative hearing and not a criminal proceeding, the consequences on your license are significant. Additionally, this hearing is an early opportunity for a lawyer to cross examine the arresting officer about what happened in your case.
These tests, commonly called the standardized field sobriety tests (SFST’s), which include the walk and turn, the horizontal gaze nystagmus, and the one leg stand, are not required by law. While refusal of the PBST (roadside breath test) is a traffic infraction, and refusal of the breathalyzer test has various penalties as listed above, refusing the field sobriety tests will not result in any punishment.
Timeline of a Criminal Defense Case
- Whether you just made a big mistake, or are being falsely accused, this can be a very emotional and important time in a case
- It is very important that you remain silent and not answer any questions about the case without a lawyer present
- Contact a criminal defense attorney as soon as possible
- Confirm the lawyer is an experienced criminal defense lawyer
- Meet with the lawyer who will help you understand the process of a criminal case
- If you have been arrested, critical proceedings and time frames begin immediately
- You will appear before a judge who will determine if you will be incarcerated, released on bail or supervision, or released without conditions
- If you are charged with a felony in a town, village or city court, the prosecuting agency will have six months from the date of your arrest to determine whether to present your case to a grand jury to seek an indictment or return your case to a lower court to be handled as a misdemeanor
- Discovery is the exchange of information between the governmental agency prosecuting you, you, and your attorney
- In New York State this process begins shortly after your appearance in court
- You can expect exchange of the following if it exists in your case:
- Police Reports
- Investigative Notes
- Videos / Body Camera Footage / Dash Camera Footage
- Forensic Reports
- Photographs
- Exculpatory Material (Brady)
- Impeachment Material
- You and your attorney may also be engaged in information gathering that includes:
- Freedom of Information Law (FOIL) Requests/Responses
- Additional Witness Interviews
- Expert Evaluations / Disclosures
- Motions are written applications to the court to request any of the following:
- Preclude Evidence
- Suppress Evidence
- Seek a Ruling on a Constitutional Rights Violation
- Seek Outright Dismissal of One or More Charges Based on Legal/Factual Matters
- Request Hearings
- A plea bargain is an offer from the prosecuting attorney to resolve your case
- Whether to plead guilty or not is always a choice you get to make, not your attorney
- Your attorney will meet with you, discuss the facts and the law of your case, and offer advice. A plea offer takes into consideration your charges as well as:
- Prior criminal history if any
- Life experiences
- Evidentiary Problems
- Post-Incident Actions
- Mental Health Counseling
- Substance Abuse Treatment
- Anger Management Treatment
- If you choose not to accept a plea bargain and are heading to trial, there are likely to be hearings to consider the following:
- Preclusion/Suppression of Evidence
- Admissibility of Evidence
- What Prior Criminal History/Bad Acts May Be Introduced by the Prosecutor if You Testify on Your Own Behalf
- During a hearing, there is no jury, and the judge will make factual and legal determinations regarding what evidence will be allowed at trial.
- You have the right to a trial by a fair and impartial jury or by the judge who will act as both judge and jury
- At a trial, the prosecution has the burden to prove your guilt beyond a reasonable doubt
- The judge or jury will listen to the evidence presented and the arguments by the lawyers, apply the facts to the law, and render a verdict of not guilty or guilty
- A Verdict must be unanimous
- If you are convicted at trial, or if you entered a plea bargain, there will be a sentencing date where your punishment will be imposed by the judge
- If you previously entered a plea bargain, the judge will likely impose the agreed upon sentence at that time
- In the event you are convicted, you have the right to appeal
- This is true whether you plead guilty or are convicted after trial
- However, by accepting a plea bargain, you may have waived some of your appellate rights
- It is important that your attorney file a notice of appeal on your behalf and that you discuss the appeal process with your lawyer
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