Whenever a person learns that I am a New York criminal lawyer and New York DWI attorney, one of the first questions they ask is whether or not they should “blow” if they are ever stopped or arrested for the crime of drunk driving in New York. Drunk driving, a crime of the New York Vehicle and Traffic Law, is codified as VTL 1192 and in various subsections. When I respond to this question, the first answer I usually give (its more of a statement) is don’t drive drunk or impaired and you won’t ever need to know the answer to this question. Prosecutors and police take this crime very seriously and its not “OK” to put others at risk when you are behind the wheel. Taking off my “regular guy” cap and putting on my criminal defense attorney hat, the analysis changes. While I cannot answer whether you or anyone else should provide a breath sample for the portable breath test (PBT) or an intoxilyzer without having a specific set of facts, the better question is what, if anything, the must the police do upon your request to speak with or call your attorney prior to “blowing”? If the police fail to provide you an opportunity and you ultimately submit to a test, what if any recourse do you have?
It seems as if issues involving DWI, DUI and DWAI arrests routinely “pop up” all over the country and here in both New York State and New York City. The obvious reason as to why this happens is because DWI is an extremely serious, avoidable and potentially catastrophic offense. Whether you are charged with VTL 1192.4, VTL 1192.3 or VTL 1192.2 (or a felony DWI offense), the consequences to your career, financial future, and family is significant. Wrongfully accused or not, you must not only be prepared to defend yourself against the accusation of driving drunk, but you must have at least a general understanding of the law. This particular NY DWI blog entry will deal with the scenario where an accused drunk driver exits his or her vehicle prior to the police arriving and, therefore, the police cannot observe or confirm the accused was actually driving the vehicle in violation of VTL 1192. The question that we are left to tangle with is whether or not the prosecution can sustain a charge of Driving While Intoxicated or Driving While Ability Impaired circumstantially.
Its widely known by New York DWI lawyers, prosecutors, judges and regular every day people that the legal limit for a BAC in a drunk driving, DWI or DUI case is .08. If your BAC is.08 or greater, regardless of where you may reside in New York from the City to the suburbs, you will be charged with violating New York Vehicle and Traffic Law 1192.2. Unlike the common law variety of New York Vehicle and Traffic Law 1192.3 that relies on certain indicia of intoxication (water blood shot eyes, slurred speech, unsteady gate), VTL 1192.2 relies solely on scientific reading from DWI equipment such as an intoxilyzer. The question posed in this particular NY DWI blog entry is if you in fact blow below a .08 can you still be charged with DUI or DWI based on a VTL 1192.3 Offense. That is, even if scientifically your are well below the legal threshold, can the police still arrest and prosecutors still charge you a DWI misdemeanor?
In the City of New York there are cabs, livery cars, Uber services, buses and subways. All of these modes of transportation make it a difficult sell to prosecutors that a drunk driving, DWI or DUI arrest was due to an inability of an accused to get home. Not that such a defense would be a viable or strong one, but these facts explain why prosecutors are often unsympathetic to the plight of an individual accused of VTL 1192.2 or VTL 1192.3. Couple this with the fact that drunk driving crimes in New York (or anywhere) can have significant collateral and direct consequences to other drivers and pedestrians, don’t be shocked if the District Attorney does not want to budge on a good offer. Remember, if you are convicted not only can you face a year in jail, the suspension or revocation of your license, a $1,000 fine and the requirement that you install an ignition interlock, but a DWI will remain on your record forever. While I may be a New York DWI attorney and criminal lawyer, I would tell you the same thing I would tell a family member. While I certainly zealously advocate for my clients in every case, if you are concerned you might be intoxicated call a cab or give your friend the keys.
In New York State from Manhattan and Brooklyn to Yonkers and White Plains, drunk driving, driving while intoxicated, DWI, DUI, or any way you want to describe it, VTL 1192 is an extremely serious offense. Simply, not only is a violation of New York State Vehicle and Traffic Law section 1192 a criminal offense, but a conviction will result in the suspension or revocation of your license, fines and a risk of probation or jail. Even without the public stigma associated with this crime, the collateral consequences are significant both to your career and within your community. Because of the grave consequences resulting from an arrest or conviction for an section of VTL 1192, consulting with and retaining an experienced New York State or New York City DWI attorney as well as having a general understanding of New York DWI and DUI law is critical. This blog entry will provide you with a general understanding of one of the many issues that arise in a DWI case. That is, whether or not the field sobriety test / portable breath test you agreed to take at the scene of your arrest for DWI can be used against you at trial.
A conviction for driving while intoxicated, drunk driving, DWI, DUI, or any other name you want to call a New York VTL 1192 crime, can, and often does, has a host of damaging consequences. The foreseeable consequences range from fines to incarceration and suspension / revocation of licenses to an interlock being placed on your vehicle (where you, the defendant, must pay for the maintenance and installation). As bad as these punishments may be (along with a criminal record that does not get expunged), there are consequences that can be much worse terms. Forget the fact that local law enforcement such as the NYPD or Westchester County Police may seek the forfeiture of your vehicle, there are few employers who would look favorably on a conviction relating to DWI even if the conduct does not rise to the felony level. With this in mind, it is never too early to challenge a criminal complaint or information. While your strongest defense may be at trial, should there be any grounds to challenge the sufficiency of the DWI accusation at an earlier stage, both you and your criminal attorney or New York DWI lawyer should seize the opportunity and do so.
Although the following case did not result in the appellate decision the defendant was hoping for, the case and decision are worth noting in this blog as they further define and illustrate the elements of New York’s DWI and Reckless Driving crimes and the minimum standards that prosecutors are required to meet to sustain a conviction.
Most of the direct consequences for a DWI (Driving While Intoxicated or DUI) crimes in New York are fairly standard. While there is deviation between sentence to sentence and case to case, the maximums remain the same for any misdemeanor offense involving New York Vehicle and Traffic Law sections 1192.2 or 1192.3. In addition to being burdened with a criminal conviction for a misdemeanor, the law allows up to a one year jail sentence, probation, community services and fines. Beyond the possibility of incarceration, sentences also include completion of the Drinking Driver Program (sometimes called the Drunk Driving Program). Additional punishment will include a license suspension and the placement of a ignition interlock device on your car that requires you to “blow” before, and sometimes during, the operation of your vehicle. Simply, the potential punishment for a conviction for New York for VTL 1192.2 or New York VTL 1192.3 are quite serious for anyone accused of or arrested for a DWI offense. This fact alone is why it is essential to ascertain and implement a defense that can lead to mitigation of your conduct to a non criminal offense or even dismissal. When you are a professional, such as an attorney licensed to practice law in the State of New York, however, the consequences can be even more grave and the need to challenge the allegations that much more important.
When arrested for drunk driving in New York City or New York State (some attorneys and non-lawyers alike call this crime DWI or DUI), there are certain elements for each of the two major DWI crimes that transcend every case. That is, for example, if you “blow” a .08 or above in terms of your BAC, the police will arrest you for the per se Vehicle and Traffic Law offense of VTL 1192.2, Driving While Intoxicated. Even if you do refuse to blow, you are not home free. Not only will your refusal result in a separate Department of Motor Vehicle (DMV) proceeding for the revocation of your license, but the police and the local District Attorney can still charge you with DWI or DUI pursuant to VTL 1192.3. This “non blow” version of DWI is no different than VTL 1192.2. The potential outcome is the same, but prosecutors must ultimately prove beyond a reasonable doubt that you were operating a motor vehicle while intoxicated through the eyes of the arresting officer (and other witnesses). In such cases the officer would testify about the smell of alcohol on your breath, your watery and blood shot eyes, your gate and demeanor, and other relevant factors. In New York City (Manhattan, Brooklyn, Bronx and Queens), the NYPD video tapes you at the precinct while conducting certain mobility tests. For better or worse, the municipalities in the suburbs of Rockland and Westchester Counties do not.
Without further addressing these crimes (materials on these offenses are found on the Crotty Saland PC website’s DWI section and throughout the NewYorkCriminalLawyerBlog.Com), what happens if you do decide to blow and take a PBT (portable breath test) at the scene of your arrest and the BAC reading is well below .08 (arguably, if it is low enough there may be no probable cause for your arrest)? What if back at the precinct you blow on the intoxilizer with a reading again below .08? How can prosecutors prove their case beyond a reasonable doubt? For starters, as noted above, the police can testify as to your traits or characteristics when attempting to establish a DWI or DUI crime even if you did not provide a BAC sample. They can do the same here. However, there are certain presumptions in the law that could potentially be favorable (or unfavorable) to you. These presumptions are found in VTL 1195.
Not all crimes involving Driving While Intoxicated are found under title 1192 of the New York Vehicle and Traffic Law (“VTL”). While all New York Drunk Driving crimes, aka, DWI and DUI, are extremely serious, so is an arrest for the DWI related crime of First Degree Aggravated Unlicensed Operation of a Motor Vehicle, VTL 511(3)(a)(iv). Before even addressing the felony implications of Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree, remember that you will also face a DWI charge because the former cannot exist without the latter.
Addressing the common DWI crimes of VTL 1192.3 or VTL 1192.2, do not forget that these crimes are misdemeanor offenses that carry serious penalties within the realm of the New York criminal justice system (also, a conviction for one of these crimes leaves you with the scar of a permanent record) and the Department of Motor Vehicles. Even more concerning than these misdemeanors crimes, if you are driving drunk with a child fifteen years of age or younger in a car, then you will not just face one of these “lesser” offenses. Instead, since 2009, the passage of Leandra’s Law made driving drunk with a child in your car a felony punishable by a sentence of up to four years in a New York State prison. This is the case whether or not anyone was injured, there was a car accident or you were merely arrested at a checkpoint. Not that any crime involving a New York DWI or DUI is a “joke,” but New York VTL 1192.2-a(b) is symbolic of the catastrophic ramifications of driving while intoxicated in the State of New York.
Crotty Saland PC, a New York City criminal defense firm founded by two former DWI prosecutors and DWI defense attorneys, is pleased to announced a resolution to a case a long time in the making. Although the initial offer required a plea to the misdemeanor crime of VTL 1192.3 (also called “common law DWI”) with an opportunity to later re-plea to Driving While Ability Impaired (“DWAI”) pursuant to New York VTL 1192.1, our client rejected this deal and proceeded to trial. In the midst of the cross examination by Crotty Saland PC of the New York City Police Department officer who effectuated the arrest, the prosecution offered our client a plea to Disorderly Conduct (New York Penal Law 240.20). Instead of facing a potential conviction that would require our client taking the DDP, being fined hundreds of dollars and having our client’s license suspended, our client’s case was immediately sealed without any conditions.
After the prosecution conducted their direct examination of the officer who arrested our client for DWI (sometimes called “DUI”), Crotty Saland PC cross examined the witness on numerous inconsistencies between the police paperwork and his testimony. For example, the officer testified at a earlier hearing that the accused drunk driver was traveling westbound on the Belt Parkway, but later contradicted himself. Even more significant, the officer testified inconsistently between the initial hearing and paperwork regarding “watery blood shot eyes.” At trial, the officer testified our client’s eyes were clear. Further, while the prosecution stated in substance that our client drank numerous glasses of wine during the opening statement, the officer testified that our client only admitted to drinking one glass. The list of inconsistencies extended well beyond what is addressed above, but not all of these errors were exposed before the prosecution made an offer mid-trial.