New York Criminal Lawyer Blog
The New York DWI and DUI lawyers at Saland Law PC are proud to announce the exoneration of a client arrested for drunk driving, aka, Driving While Intoxicated, pursuant to New York Vehicle and Traffic Law (VTL) 1192.3. After “blowing” a .42 on the portable breath test (PBT), our client returned to the NYPD precinct and performed a second breath test where he blew a .6 on the Intoxilyzer. Despite blowing below the legal limit for a DWI pursuant to the per se VTL 1192.2, both the NYPD and prosecutors charged our client with the misdemeanor “common law” DUI crime of VTL 1192.3.
Our client, a professional in the media industry, was stopped at a checkpoint near the West side Highway in NYC. After complying with the stop, our client allegedly admitted to having two drinks that evening. Although the “two drink” assertion is usually received with the same suspicion by the NYPD as it was when you said the same to your mom and dad before you were 21, sometimes it is the truth. You only had two drinks. After blowing a .42, well below the legal per se DWI limit of .o8 for VTL 1192.2, the police still arrested our client.
Upon appearing in the video room of the precinct where the police recorded our client submitting to a chemical breath test, our client agreed to provide a BAC sample and blew a .o6. Again, below the legal limit, the first “blow” was below the presumed legal standard for impaired (a non-criminal VTL 1192.1). Similarly, the second fell within the legal presumption for impaired, but well below the “automatic” standard for criminal intoxication. Complicating matters for law enforcement, the arresting police officer rushed or client through the testing procedures and stated in substance that he was too busy to provide our client an opportunity to take any balance or physical tests. Otherwise, our client appeared sober on camera.
Make no mistake. The best course of action would be to call a cab or have a designated sober driver, but having a drink does not equate to being drunk nor necessitate an arrest. However, even if not worth the risk, one or two drinks, depending on one’s size, time span of consumption and other factors, does not automatically equate to criminal intoxication in violation of New York’s DWI laws. Moreover, where there was a alleged checkpoint, as claimed here, there are certain guidelines the police must adhere to such as a plan that limits the discretion of the police to decide which cars to stop, notice of a checkpoint to drivers, a tactical or “tac” plan, the presence of a supervisor, a specific purpose beyond general crime control and other elements. Failure to adhere to the law means that a bad stop results in a bad arrest. The police can’t “pass go.”
Ultimately, after the prosecution answered ready for trial and our criminal defense team did the same, the DWI case against our client was sent out to a judge for that purpose. Before starting the trial, however, and upon further review, the District Attorney dismissed the case against our client. Our client, who refused to accept a plea based on our legal recommendation and review of the evidence, heeded our advice and walked away not merely unscathed, but blemish free.
Remember, each and every case, arrest, and DWI allegation rests on the evidence and your attorney’s ability to confront or present the same. Was it relevant that the police clearly deprived our client the ability to take coordination tests? Absolutely. Were there issues with the checkpoint stop? Possibly. Did our client ever “blow” near, at or above the legal limit of .08? No. All of these factors, combined with advocacy and both our client’s and criminal defense attorneys’ willingness to “go the distance,” paid off.
To learn about New York DWI crimes, New York DUI laws and all things related to drunk driving and driving while intoxicated in New York, follow the links here or go directly to the New York DWI Crimes and Law Information Page at New-York-Lawyers.org. If nothing else, after reading the information provided there and recognizing the gravity of what alcohol can do to rational common sense, maybe you will think twice before getting behind the wheel. If it’s too late and you made a poor decision, know you have rights and a law firm to protect them and you.
Saland Law PC is a New York criminal defense firm located in Manhattan. Representing clients arrested for VTL 1192 crimes and violations throughout New York City and the Hudson Valley, the New York DWI lawyers at Saland Law PC served as prosecutors in the DWI Unit of the Manhattan District Attorney’s Office.