Articles Posted in DWI and Traffic Offenses

It comes in different shapes and sizes – DWI (Driving While Intoxicated), DWAI (Driving While Ability Impaired) and DUI (Driving Under the Influence) – but regardless of the particular offense in New York (both NYC and Westchester), prosecutors and judges take these charges very seriously. As a former Manhattan prosecutor and as a criminal defense attorney at Saland Law PC, I have handled countless DWIs, DWAIs and DUIs whether they are charged as VTL 1192.1, VTL 1192.2, VTL 1192.2-a or VTL 1192.3. One particular question that I have heard asked in various forms is “how can I be charged with DWI if there is no breathalyzer or intoxilizer that indicates how much alcohol I had in my system?” The answer to this question is quite simple. As we call it in the criminal law field, a DWI without a chemical test result and one based on an officer’s observation is “Common Law” DWI.

Unlike VTL 1192.2 which requires a reading of alcohol in a person’s blood to be .08 of one per centum or more, a person is guilty of Driving While Intoxicated pursuant to “Common Law” VTL 1192.3 if they operate a motor vehicle while in an intoxicated condition. Well, if there is no reading or analysis, what does law enforcement hang it’s hat on to establish this crime? Very often the police cite certain characteristics of the accused across the board. The officers claim that that the accused had “water bloodshot eyes,” “slurred speech,” “the smell of alcohol on their breath,” and they were “unsteady.” Maybe the police allege that a person was asleep at the wheel, was driving erratically, or even threw up on themselves. One of the easiest ways they establish your lack of sobriety is based on the boneheaded mistake that people of all walks of life make when confronted by the police regardless of the accusation. That is, they make an admission. Something as simple as “I only had a few (or couple) of beers.” Well, if you didn’t present any of the characteristics mentioned above, but you stated you had a couple of beers, you probably just bought yourself a trip to the precinct and ultimately before a judge.

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With Memorial Day Weekend upon us, many people unfortunately make the mistake of drinking and driving in New York State and NYC. As a NY criminal defense attorney and former Manhattan prosecutor at Saland Law PC, I have defended and prosecuted individuals charged with Driving While Intoxicated (DWI). I can tell you that law enforcement and the courts vigorously prosecute DWIs regardless of whether it is your first time. Make no mistake, a DWI is a very serious crime that can have horrific results and that fact is not lost on prosecutors or the courts. That being said, no matter what crime you are accused of, even DWI, the police must still act within the confines of the law. Your rights should not and cannot be violated no matter the circumstances.

In the May 8, 2009 Queens Criminal Court decision of People v. Steven H. Noreiga, 2008QN001052, a NY criminal defense lawyer did his best to protect his client’s rights after he was arrested and charged with DWI. In that matter, the defendant made an illegal u-turn. Upon stopping the defendant, the officer noticed the strong odor of alcohol on the defendant’s breath. Shortly thereafter, the defendant was asked to take a breathalyzer at the scene where he “blew” a .188. The police officer then drove the car and parked it near the precinct while the passengers who were in the vehicle went there as well. A while later, and after determining that the defendant was not the owner of the vehicle, the officer went to secure the vehicle. At that point he noticed six 12 ounce bottles of Corona beer. Four of these bottles were opened with varying amounts of alcohol inside. During motion practice, the defendant’s attorney challenged the probable cause to arrest the defendant, the breathalyzer result at the precinct, as well as the recovery of the bottles of beer.

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In a report recently released by the New York State Division of Criminal Justice Services, nearly 96 percent of all Driving While Intoxicated (DWI) arrests in New York over the past three years resulted in a conviction. With this type of conviction rate it is clearly imperative that you retain experienced and skilled criminal defense attorneys who know how to handle DWI and DUI crimes. The criminal defense lawyers at Saland Law PC, are former Manhattan prosecutors who served under Robert Morgenthau and have prosecuted as well as defended these matters.

Having experienced criminal counsel is crucial because last year In New York City alone the police made approximately 10,000 DWI arrests. According to the report, DWI convictions in Manhattan were the worst throughout the city with “only” a 75 percent conviction rate. Although jail time is permitted by law, a fraction of those individuals convicted of DWI or DUI served any jail time.

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Throughout NY, law enforcement is gearing up for the holiday season and the unfortunate reality that many people will be driving drunk. Make no mistake, police, prosecutors and judges rightfully take DWI (Driving While Intoxicated) crimes very seriously. That being said, law enforcement must act within the bounds of the law in investigating and prosecuting these crimes. Obviously, making sure that law enforcement adheres to the “rule of law” is imperative to the criminal defense attorneys at Saland Law PC, because we know that the mere allegation of DWI, even if it is completely incorrect, has life altering consequences.

Recently, in People v. Shannon Sharp, 2008I001925, a criminal court judge suppressed the blood test results of a defendant charged with DWI. In that case, 2.5 hours after the defendant was initially arrested, the defendant agreed to submit to a blood test after the police officer “told that her [that her] driver license would be immediately suspended and subsequently revoked if she did not consent to a blood test, and that ‘refusal to submit to a test or portion thereof, can be introduced against [her] at any trial proceeding or hearing resulting from the arrest.'”

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As I have stated countless times throughout the entries in my blog, assistant district attorneys and the NYPD in New York City vigorously prosecute those accused of DWI. Make no mistake, the NYPD, judges and prosecutors take the crime of DWI very seriously and an experienced NY criminal attorney should be retained to formulate your best plan of attack to defend and protect your liberty and livelihood.

As a former prosecutor in the Manhattan District Attorney’s Office for seven years and a New York criminal defense attorney, I work with each client to take the time to develop a specific plan for their case whether it is DWI, Identity Theft, or another criminal matter. In order to defend clients to the best of my ability and provide them with a zealous representation, I stay on top of legal decisions in New York City as well as the state.

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New York Criminal attorneys must always stay on top of recent judicial decisions in order to effectively advocate for their clients whether they are representing a client in Brooklyn for Robbery, White Plains for Forgery or Manhattan (NY County) for Prostitution in relation to an escort service. A recent decision relating to DWI in the Bronx on July 21, 2008 exemplifies this need to constantly be aware of decisions made by judges throughout New York State.

In People v. Netania Holbrook, Justice Richard Lee Price of the Bronx County Supreme Court (the court where felony cases are heard), granted a motion to suppress breathalyzer results taken two hours after the arrest of the defendant for DWI.

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Even if you retain a criminal defense attorney who helps you avoid jail or a significant fine on a plea to Driving While Intoxicated (DWI) in New York City, there is always the potential that the vehicle you were driving at the time you were arrested may be forfeited. In fact, this past March the Appellate Division First Department (an appellate court with jurisdiction over the Bronx and Manhattan) upheld a forfeiture of a car where the vehicle driven during the DWI offense was a BMW valued in excess of $20,000.

In the above mentioned case, the owner of the car argued that New York City should not be able to seize and keep the vehicle because the punishment was excessive. The owner reasoned that if the maximum fine is $1000 for the DWI offense, the forfeiture of a vehicle valued over $20,000 is clearly excessive. Unfortunately for the owner, the First Department was not swayed. Further compounding things, the First Department also rejected the owner’s argument that his equal protection rights were violated because the New York City Police Department only sought the seizure and forfeiture of expensive cars. This allegation, according to the First Department, was merely speculative.

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Driving While Intoxicated (DWI) is an offense that all prosecutors and judges in New York, from Manhattan, Brooklyn and the Bronx to White Plains, Yonkers and Mt. Vernon, take extremely seriously. In fact, as of December 2006, the New York State Legislature put a new law on the books, Aggravated, DWI 1192.2(a), which reflects prosecutors’ and judges’ views.

Aggravated DWI sets forth, in pertinent part, that no person shall operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person’s blood as shown by chemical analysis of such person’s blood, breath or urine. Although the crime for a first time offender is a misdemeanor punishable by up to one year in jail, a felony a felony prosecution punishable by up to 4 years state prison can be brought if in the past 10 years the person has a prior DWI. Assuming this offense is the driver’s first, there is a fine of $1000 to $2500 as well as limitations on what a person can plead to that is significantly more strict than a DWI where that person’s alcohol level is lower.

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