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NY State DWI – from arrest to conclusion of the case, i.e., from “teeth to tail”

Before drafting this page I read many other attorneys web pages about NY driving while intoxicated. I was underwhelmed for 2 reasons: (1) either it gave no real information other than “hire me,” or (2) it gave detailed information in unintelligible gibberish. That is why I decided to craft this page explaining in plain English what a DWI is, how to assert your rights if you are stopped by the police and have been drinking, and, if you are seeing this post arrest a comprehensive guide to the process. All of this is written in plain English understandable to everyone.

DWI – what is it?

Broken down simply, there are 2 ways of being found guilty in NY of driving while intoxicated: (1) having a blood alcohol content of .08 or more, or (2) operating a vehicle while your ability to drive is impaired because of intoxication. This has nothing to do with your BAC. You could have a BAC of less than .08 and still get convicted of NY State DWI, NY VTL § 1192(2).

Most people believe that being less than .08 is legal. It is often referred to as the “legal limit.” However, this is NOT TRUE. In fact, the OPPOSITE is true – that if your BAC is proven to be .08 or higher you are guilty of VTL § 1192(3) / NY DWI, EVEN IF your ability to operate a vehicle is impaired. So you should think of the BAC being .08 or higher as the “illegal limit,” NOT being .08 or less as the “legal limit.”

A 3rd category of NY DUI is driving while ability impaired, or “DWAI.” The main difference for civilian purposes is that where DWI is a crime (a misdemeanor or a felony), NY DWAI, NY VTL § 1192(1) is an infraction; i.e., not a crime. It is still an alcohol related conviction; it will still show up on your driving abstract and a criminal history check; and the DMV will still take action against your license, however you will not have a formal criminal record when convicted of DWAI instead of DWI. Normally, you are not charged at the outset with DWAI it is something you can plea bargain for instead of going to trial on the criminal DWI charge.

The first step – the police stop. Just you, the cops, revolving red lights, and a dark road

If you have been stopped in NY State and have been drinking to any appreciable degree, you need to wrap yourself around this cold, hard, sobering fact: You are going to be arrested. Let me say that again – YOU ARE GOING TO BE ARRESTED. You are not going to “talk” your way out of it or “pass” the tests. The cop is not going to take your keys and make you walk home. You are going to be arrested. And there is nothing I can explain to you which will prevent that. What I can explain, however, are your constitutional rights in dealing with the police so that, at the end of the day, the prosecutor has no evidence by which she can prosecute you. What you do on the stop, and whether or not you assert your constitutional rights, WILL be the difference between a dismissal of the charges and an alcohol related conviction.

Remember, there is NOTHING you can do to avoid the

ride and A LOT you can do to avoid the conviction

When stopped, pull over safely and keep your hands on the steering wheel. If you can pull over in a legal parking space do so (more about this later). When the cop comes to the car roll your window down about ¼ of the way. Hand him your license and registration when he asks. SAY NOTHING! (Saying nothing will be a recurring theme). If he asks “do you know why I pulled you over, say “no” because you don’t. If he asks “do you know the speed limit say “I have given you my license if I have done something wrong you can write me a ticket.”

Here’s the thing – you have a right to remain silent. However, this is difficult for the average person to do. So, rather than stay totally mute, you just answer his question with a non-responsive question or answer. Eventually, the police will get around to “have you been drinking tonight.” The answer to this is NOT “2 beers.” The answer is “I do not care to answer your questions and will maintain my right to be silent. I want a lawyer before I answer any questions.” Now, this will likely anger the cop – even if he does not show it. He may threaten to arrest you on the spot, tell you that you are “interfering” with an investigation, or he may even try to pretend that he is trying to help you: “look man…you have bloodshot eyes…you were swerving…you smell like you have been drinking…I mean, this doesn’t look good for you and I have to hear your side of the story…”

Whatever the cop says, it is irrelevant. He is lying to you. He cannot arrest you on the spot for not answering his questions and by the same token he is not looking to help you. If you are being questioned to this degree the police have already made up their mind to arrest you. So at this point you have 3 choices: (1) you can tell the truth; (2) you can lie; and (3) you can continue to exercise your right to remain silent. Now, telling the truth will only give the state more evidence, and lying will only get you more charges. So, what you do is say nothing.

            A note on a police investigation, lying, and you:

You need to understand this very clearly. A police officer, in the course of his investigation, CAN LIE to you. And not only do they lie, they are trained in effective lying techniques. However, in your responses, YOU CANNOT LIE BACK. If you do, you will catch extra charges.

So clearly, you cannot answer any questions about where you were coming from, where you are going, and whether you have been drinking. However, it is very difficult to just sit there and ignore an angry cop. So when they try to get you to talk to them through threat, intimidation, kindness, or otherwise, when they end their narrative, your sole response is “officer, am I free to go?” If by some miracle they say “yes” do it!

However, that is not likely. The cop will may ask you to do some tests like counting on your fingers, reciting the alphabet, etc. These are called “pre-exit tests,” which are designed to give him an articulatible reason to continue the investigation by giving you field sobriety tests outside of your car. Again, don’t do them. Just ask in response to anything he may say “officer, am I free to go?” If he asks to search your car simply say “sorry, I do not give consent to search me or my car.” He may try to convince you by saying “well if you don’t have anything to hide you’d let me search what am I supposed to think?” The reality is that it is irrelevant what the cop thinks. Nor does refusing a consent search give rise to probable cause to search. Just shrug your shoulders and say “I don’t give consent…am I free to go?”

Eventually, they are going to ask you to step out of the vehicle. While there is conflicting authority on whether they can order you out of a vehicle without first placing you under arrest, I believe that the police have the right to order someone out of a vehicle that is not under arrest. Nonetheless, they will likely at first ask you to get out of the car. To that you say “am I under arrest,” to which they will likely say “no.” At that point, you can simply decline their invitation to step out. However, there will come a point when they order you out of the vehicle. Make it clear that you are not getting out of the car unless they are not giving you a choice: “officer, are you asking me or telling me to get out of the vehicle.” At a certain point, they will make it abundantly clear that they are ordering you out of the vehicle. At that time you comply.

Remember, in today’s day and age EVERYTHNG is being video and audio recorded. YOU as the criminal defendant are entitled to copies of all audio and video recordings. There is serious legal significance between a cop asking you to do something and you complying and ordering you to do something against your wishes. It can only help, and not hurt, your court case to make the cop order you to do things. So make the cop clearly articulate his orders to you.

Before you get out of the vehicle do this – roll up the windows and turn the vehicle off. Once you get out of the car lock the car and put the keys in your pocket. Why? Because the police have the right to search you for weapons. However, “you” is not just “you.” It’s “you” and any “reachable area.” If your vehicle is locked with the windows rolled up nothing in the vehicle is reachable; hence the cops cannot use that as a pretext to search your vehicle. If the cop asks you why you did that, just respond “I’m out of the vehicle officer, now what?” If he asks for the keys to your car tell him no; if he asks for consent to search your vehicle tell him no.

Remember – NEVER consent to any searches of your vehicle or you!

Field sobriety tests

The cop got you out of the car to do field sobriety tests. Some common ones are the horizontal gaze nystagmus (following a pen or object with your eyes), one leg stand, walk and turn. Another field sobriety tests is the hand held alcohol sensor. This is NOT a chemical test, although you do blow into a machine.  It is a screening device that, while it adds to probable cause to arrest you, is inadmissible in court.

You should decline all invitations to take any tests. Why? Look, if you are out of the car and you have been drinking the cop already knows it. He is not using these tests to see if you “pass” so you can go on your merry way. He is using them to build his case against you. Let’s analyze this for a moment – who is the average cop that stops you on the midnight shift? He’s likely a young man or woman in his 20’s or 30’s. He or she has been to college. He or she is probably not a puritan. He or she has probably partied hard at one point. Do you really think he could not tell you were drunk by the time he said to you “let me see your license and registration?” No, he or she already knows you are drunk. You are getting arrested whether or not you do the tests. So don’t do them – refuse.

A word on refusing field sobriety tests:

Exercising your constitutional right to remain silent CANNOT be used against you in court. However, exercising your constitutional right to refuse field sobriety tests CAN be used against you in court. The distinction is rooted in the fact that the constitution only provides a citizen a right against verbal incrimination and not other types of incrimination. It has been held that refusing a field sobriety test shows a consciousness of guilt which is admissible at trial. Further, refusing to provide a breath sample for the alcohol sensor is a separate infraction. Refusing other field sobriety testing is not. 

The second step – the arrest

Eventually, the cop will have enough of you and him trying to outwit each other, and you will be placed under arrest. If your vehicle is on the shoulder of a road or in a roadway and you do not have a passenger to drive the car away the police will have the vehicle towed. So long as the police have to tow your vehicle they will have the right to search it – not for contraband but do an “inventory” to safeguard your property. However, if in doing this legal inventory they find contraband it’s fair play.

This is why you try to pull over into a legal parking space. If your vehicle is legally parked they have no right to tow it and therefore no right to “inventory” it. Since you are under arrest they will have searched your pockets and taken your keys. If they start to search your vehicle for whatever reason make it clear that you are not consenting and point out that your vehicle is legally parked so they have no right to tow it. They will do what they want and at that point there is nothing you can do about it. What you are doing though is creating a record (remember, everything is on video / audio) so if they do find contraband it will have to be suppressed from evidence. Further, if you have someone with you who can drive tell the police that you are releasing the car to that person. Again, they may not allow that but that is not the point. The point is to create a record that they violated your rights and had no justification to tow your car; that the towing of the car and inventory was just a pretext to do an illegal search.

Even though you are under arrest, the handcuffs are on, and you are in the back of a patrol car, you have likely NOT been read your rights. Understand this – do not take this as in invitation to start running your mouth because they can’t “use” it. Further, it is a myth that the charges have to be dismissed if you are not read your rights. An entire book can be written in Miranda rights but just know this – continue to keep your mouth shut.

Step 3 – the chemical test

The chemical test is also called the “breathalyzer.” After you have been placed under arrest, and within 2 hours of said arrest, you will be given the opportunity to submit to a chemical test, most likely by breathalyzer. There are ramifications for providing a sample and ramifications for refusing.

NY, like all states, is an “implied consent” state, which means that you implicitly give your consent to submit to a chemical test as a condition of either having a NY driver’s license or driving on the roads of NY State. This means that if you refuse the NYS Department of Motor Vehicles can take action against your license for refusing. That is the down side. On the up side, the state gets less evidence for the prosecutor to use against you in the judicial proceeding.

My advice is to never, ever consent to a chemical test. Here is why. The citizens of NY are pretty fed up with drinking and driving. This is reflected in our laws and the policies of the county district attorney’s that prosecutes all of the New York DWI cases. If a person provides a breath sample that is .18 or more they are not just charged with DWI but aggravated DWI, a conviction of which requires the defendant to be placed on 3 years mandatory DWI probation which is very onerous. If a person is found guilty of regular DWI he now must place a breathalyzer interlock in his vehicle at his expense for up to 1 year. Further, many district attorneys have their own policies as to when to hold someone “as charged” rather than offer a reduced charge based on what their breath sample level returns. Some it’s as low as a .11. Therefore, if you do not provide a breath sample then you can never be charged with aggravated DWI and you have not hit a number for the district attorney’s “policy” to hold you as charged. So in my opinion you have nothing to gain and everything to lose by consenting to the chemical test.

If, however, you refuse the chemical test then you will be required to appear before a tribunal of the NYS DMV for a “refusal” hearing. This hearing is administrative and separate and apart from that of the judicial court proceeding; you can be found “not guilty” of the DWI in court but found “guilty” of refusing the chemical test at the hearing, and conversely you can be found guilty of DWI in court and “not guilty” of refusing the chemical test before the DMV tribunal. If you are found to have refused your license will be revoked for 1 year and you will have to pay a $750.00 reinstatement fee. 

Just like refusing field sobriety tests, refusing the chemical test likewise shows

a consciousness of guilt and is therefore admissible in evidence at trial.

A word about the breath test – how does it work anyhow?

Requiring no digestion, alcohol is absorbed unchanged into the blood stream. The blood breath ratio of 2100:1 has been accepted from computing BAC from breath. This means that 2,100 milliliters of lung air contains the same amount of alcohol as one milliliter of blood. Consequently, breath alcohol concentration is believed to be as accurate as a blood test for alcohol concentration.

In addition to being invited to take a chemical test when in custody you will also be invited to answer a whole series of questions. Most of them are the same as you were being asked to provide roadside. You may also be asked to do field sobriety tests again. Politely decline and tell them that all of the information you are willing to provide is on your driver’s license and that you are not going to answer any questions without a lawyer. In fact, to every question they ask repeat that you are not going to answer any questions without a lawyer and that you want a lawyer. Other than providing them with your name, address, and date of birth (which again is on your license) answer nothing. In addition, sign nothing other than a bond form that you may have to sign to be released, or a promise to appear if they are willing to release you without posting a bond.

            A word about asking for a lawyer

When under arrest, invoking your right to counsel is pure magic. Under NY State Law, once you demand a lawyer the police CANNOT question you anymore. They cannot legally convince you to subsequently waive your right to counsel. ALWAYS demand your right to counsel WHENEVER you find yourself in police custody or on a stop in public.


The 4th step – arraignment

Your very first appearance in court is called the arraignment. This, however, can be tricky, because in some places the police, directly after processing, bring you before the court for arrangement without first releasing you and setting up a future arraignment date. This is very problematic, as unlike any other criminal case in NY state a DWI arrangement is more than just a pro forma proceeding. If there is one type of case a defendant absolutely needs counsel for an arraignment is at a DWI arraignment. This is because at such an arraignment, you have rights that you can lose if you do not assert them. Further, depending on the situation it may be in your interest to waive the rights – but you don’t know it. Also, your license or privilege to drive is usually suspended, however, this is only proper when the breathalyzer results are properly before the court and authenticated. Further, even if your license is suspended you can demand a hearing for temporary limited privileges. You will also have to make a bail application at an arraignment and you have no idea of the factors you need to present to get a low or no bail.

If you find yourself before a court on a DWI arraignment without a meaningful opportunity to obtain counsel this is a place where you need to stand up for yourself. You cannot put any faith whatsoever in the judge. The judge is not on your side. Under the judiciary laws, the judge is supposed to act as a criminal defendant’s attorney when the person is being arraigned without counsel. Most judges do not do this. They just pull your license, set bail, and send you on your way.

You need to speak up! Tell the judge how long you have been in police custody and tell the judge that you “move to adjourn arraignment” for a reasonable time to retain counsel. The judge is going to be reading you a lot of stuff and asking you if you understand it. If you do not understand do not just nod your head “yes,” say “no I do not and I want an adjournment so I can hire an attorney.” Liberally tell the judge of anything and everything that you do not understand. Ask the judge what your rights are. Often, a judge will assign a lawyer in court to represent you at the arraignment. This is insufficient, as you as the defendant have a right to an attorney of your choice. Tell the judge that and again repeat that you are demanding an adjournment of the arraignment. Will they do it – most times no. However, yet again that is not why you are doing it. You are doing it so that the lawyer you eventually retain can get you relief that should have been given to you at the arraignment.

Also at the arraignment you will enter a plea (the court will enter a “not guilty” plea if you are there without an attorney). Conditions will be set. You will be required to submit to an interview for screening for alcohol counseling with TASC, a county agency. If they recommend a treatment plan then you will have to go adhere to that treatment schedule whether you like it or not.

Step 5 – retain counsel

Eventually, you will be released from custody. Often times it is before the arraignment. You need counsel. ASAP. Retaining the right counsel is the difference between a good outcome and a bad outcome. It’s the difference between making 2 court appearances and making numerous court appearances; it’s the difference between quickly getting your license back and having it revoked for a year; it’s the difference between a brief period of pre-resolution counseling and months of pre-resolution counseling. The time to retain counsel upon a NY DWI arrest is the minute you are out of custody.

Step 6 – discovery

Eventually, your file will land on a prosecutor’s desk. If you followed my instructions it will look unlike the dozens of other DWI files she is prosecuting because it will contain NO EVIDENCE. Plus, any evidence it does contain will likely have been illegally seized. This is the point of keeping your mouth shut and not consenting to anything.

Your defense counsel is entitled to copies of not just the file but the video and audio tapes. Again, what you did during your stop and whether and what kind of evidence you provided the police is going to determine how the case ultimately resolves.

Step 7 – preliminary hearings

As a criminal defendant you are entitled to certain pre-trial hearings to determine if probable cause exists to so much as hold you, let alone prosecute you. This hearing is held in open court and is recorded by a stenographer. The primary hearings and issues are for suppression of evidence under NY CLP § 710.20 and are generally as follows:

·        Huntley hearing to determine if statements were voluntary or involuntary

·        Sandoval hearing to determine the extent of cross examination as to prior convictions / bad acts

·        Dunaway hearing to determine if evidence obtained after arrest was obtained as the result of an illegal arrest or stop

·        Mapp hearing to determine whether physical evidence should be suppressed

·        Ventimiglia hearing to contest the prosecution being allowed to assert before the judge a defendant’s prior criminal history on their direct case

·        Wade hearing to suppress identification evidence

What can result from these hearings is a suppression of all the evidence and then the charges must be dismissed; a suppression of some evidence which would mean that the prosecution could still proceed forward with the case without the suppressed evidence; or a dismissal of some, but not all of the charges. In addition, doing these hearings locks the police into their story and provides a record for cross examination by the defense lawyer.

Step 8 – plea or trial

By this point, if all or some of the charges survived both the prosecution and defendant has a good sense of the quality and quantity of the evidence. This is the time for all parties to “fish or cut bait.” If the parties cannot enter into an agreed plea offer through negotiations then the case gets put down for trial.


A word on the benefits of entering a plea

There are several reasons why criminal defendant would consider entering a plea to a reduced charge or even to the top charge. One is if the offer will resolve the matter with a non-criminal disposition. You can often avoid jail in a plea deal. Similarly, in a plea deal you can incorporate terms of your sentence, whereby if you are found guilty you leave sentencing up solely to the discretion of the judge. 

If the case goes to trial it is the prosecution that has the burden of proof on every element, and they must prove it beyond a reasonable doubt. The trial can be held before the judge or before a jury – this is strictly up to the defendant whether or not to waive a jury. Sometimes defense counsel makes written pre-trial motions. Often these motions focus on jury instructions and evidentiary issues.

The trial proceeds with the prosecution and defense lawyer picking a jury. The prosecution makes an opening statement, then the defense counsel. The prosecution calls its witnesses and the defense lawyer cross examines. After all prosecution witnesses the prosecution rests. At that point the defense counsel moves for a directed verdict, the legal standard being that given all the evidence in the light most favorable to the prosecution, the prosecution has not even a prima facie case.

If this application is denied the defense can present witnesses. The defendant can, but does not have to, testify. The defendant can produce eye witnesses, expert witnesses, or no witnesses. At the close of the defense case, the defense rests and usually moves to dismiss arguing that any verdict of guilty would be against the weight of the evidence as a matter of law. If that application is denied the case will go to the jury. For a defendant who is found guilty or pleads guilty his case moves into the sentencing phase.

Step 9 – sentencing

Upon being convicted by plea or trial of a misdemeanor or felony, in most cases the defendant is directed to submit to the department of probation for evaluation so they can prepare and submit to the court a pre sentence report. The court does not have to follow the sentencing recommendations of the probation department.

Sentences can vary greatly. Fines, probation, jail, conditions (a conditional discharge), or all or part of those can be imposed. For a NY DWI or DWAI, conditions of a discharge usually include attending the MADD victim impact panel, completion of any TASC counseling, and successful completion of the NYS DMV drinking driving program (DDP), which is also required to re-obtain full driving privileges. A violation of the conditions usually results in a remand to custody (i.e., jail). 

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