With Labor Day just around the corner, the NYPD, local police departments, County Police and New York State Troopers will be out in full force looking to arrest drivers for Driving While Intoxicated (DWI), Driving Under the Influence (DUI), Drunk Driving or any other named version of the New York Vehicle and Traffic Law for intoxicated driving. Whether the police arrest you and charge you with a misdemeanor or felony VTL 1192 crime (the section of the law that defines all DWI and DUI crimes in New York), there are a few things that all of us should know about New York DWI laws beyond the obvious of steering clear of drinking and driving in any capacity. In no particular order, remember the following:
(1) When the police pull you over or you are stopped at a DWI checkpoint you need not answer them when they ask you whether or what you have been drinking. You always have a right to a lawyer. Telling your mother you only had a couple of beers when you were busted as a kid didn’t fool her. Make no mistake. It will not fool the police or prosecutors either. Your admission will absolutely be used against you.
(2) You will be asked to blow into a portable unit to ascertain your BAC at the scene. Although this is not the official intoxylizer or other breathalyzer type machine used at the precinct, it gives the police further probable cause to arrest you for a DWI crime such as VTL 1192.2 (BAC .08 or greater). Even if you register a blow below .08, prosecutors can charge you with “common law” DWI based on your mannerisms, appearance, behavior, etc. VTL 1192.3 is the exact same misdemeanor in terms of punishment. Another critical point is something that experienced New York DWI lawyers are seeing with regularity. Even if you refuse to “blow” at the precinct later where the “official” sample is taken, judges are now allowing prosecutors to introduce the field test taken at your vehicle into evidence as long as the proper foundation is set forth. This is relevant because if you refuse to provide a breathe sample at the precinct and otherwise appear sober, the sample you provided at the scene may be the scientific “nail in your coffin” that prosecutors can use for a conviction. Obviously it is your decision, not one that is answered here, as to whether or not you should “blow.”
(3) Should you or should you not “blow” (didn’t I just address that?)? No DWI attorney or any criminal lawyer will answer this question without knowing the specific facts and circumstances of your arrest and consumption. There are relevant factors to keep in mind when making your decisions, however. For example, if you refuse to take the intoxilyzer test at the precinct and you are properly warned of the legal ramifications of a refusal, your license will be revoked for one year by the New York Department of Motor Vehicles. While you will have a right to a Refusal Hearing, even if you are ultimately cleared of any criminal wrong doing the separate DMV consequences will not merely go away. Another practical consideration is that if you are “skunked,” for example, and you may blow a .18 or higher, your DWI becomes an aggravated misdemeanor. Should New York law enforcement have scientific evidence of this blow, their case against you becomes significantly stronger and viable. Without this evidence it becomes more difficult regardless of the DWI or DUI crime charged. Keep in mind that each jurisdiction and County has its own guidelines. While a non criminal offer may be made in one county if you blow a .13 and not in another, a refusal may preclude any offer at all. Again, remember you have the right to an attorney or lawyer at any time during this process.
(4) When you first see a judge in New York for a DWI or DUI arrest (your arraignment), your license will be suspended. Assuming you did blow into the breathalyzer or intoxilyzer and a BAC sample was retrieved, you may be entitled to a Hardship Hearing. This hearing must be requested at your arraignment. Failure by your DWI lawyer to make this request may preclude you from having this hearing. Such a hearing is relevant in that a court may grant you a limited privilege to drive to such places as school, work or for medical treatment. If your arrest is of the refusal variety (VTL 1192.3), a judge will advise you of the DWI Refusal Hearing and you will likely be provided a date for that hearing. It is highly recommended you have a Refusal Hearing lawyer represent you during this process.
(5) It is important to remember that New York DWI laws and crimes have become more strict and more serious over the past couple of years. If a child is in your vehicle who is under the age of 16 and you are driving drunk, you will be arrested for felony DWI (Leandra’s Law) where the charge of VTL 1192.2-b is punishable by up to four years in prison. Even if there is no child in the vehicle, but you blow a .18 or higher, you will be arrested for and charged with New York Aggravated DWI (VTL 1192.2-a). This enhanced misdemeanor crime precludes prosecutors from offering you a non-criminal deal even if they wanted to do so.
DWI and DUI arrests often happen to people who are otherwise law abiding citizens. Regardless, prosecutors and judges take drunk driving crimes in New York very seriously and for objectively the right reasons. While the best defense to DWI is not drinking and driving, educating yourself is the next best step. Even then, there is not substitute for retaining the right DWI attorney for your particular circumstances.
This blog entry is in no way a substitute for actual education or advice on how you should act should you be arrested for a VTL 1192 crime in New York City, Westchester or elsewhere in the State, but it gives you some of the basic information to be prepared to have a conversation with your criminal lawyer or DUI attorney.
Crotty Saland PC is a New York criminal defense firm representing clients for DWI and DUI arrests throughout the New York City region. The founding New York DWI lawyers at Crotty Saland PC served as prosecutors in the Manhattan District Attorney’s Office’s DWI Unit during their tenure and prior to starting the criminal defense practice.