Arrested for DWI?

  Among other criminal cases, our law firm (DWI Lawyer) specializes in Driving While Intoxicated (“DWI”) or Driving Under Influence (“DUI”) and Driving While Ability Impaired by Drugs. It is very important that these kinds of cases are handled by the specialist, DWI Lawyer and not the general practice lawyer, from the first minutes of the arrest, because such cases are very technical and have many nuances. Non-competent attorney or attorney who is specializing, for example, in bankruptcy or immigration law, may give wrong advice to his client, and this may have far-reaching negative consequences. However, DWI Lawyer handled hundreds of DWI cases over the years and is very knowledgeable.

How usually does DWI/DUI arrest happen?
Perhaps, many of the esteemed readers of this article, heard, or maybe even said themselves, that they are excellent drivers, even when they had a few drinks. Why then there is no decrease in the number of DWI/DUI cases? It is not a secret, that a person after a few drinks becomes at first more excited, cheerful, relaxed, in some ways loses control of himself, becomes more talkative and forthcoming, oftentimes behaves more assertive and fearlessly. All of this is fine for the pastime in the good company, however, it becomes dangerous, when the person in such condition gets behind the wheel. Of course, the majority of moderately drunk drivers do not get stopped by police and do not get arrested, but think for a moment – do you want to become the one who would be arrested, would have to spend thousands of dollars between defense, programs, fines for Court and DMV, whose auto insurance rates would increase for several years?  There are several scenarios, how such driver gets arrested by police. Often times, because of more risky driving, such a driver gets into an accident. Police may be called by either another driver who was involved in the accident or even an eyewitness to the accident. The second common scenario is, when the driver is stopped for any traffic infraction (for example for speeding – remember, such drunk driver feels very sure of himself!) After the stop, police officer, usually will notice that the driver is drunk. There is one more, not quite rare scenario: the driver is asleep or just sits behind the wheel of the parked car with an engine running. The law criminalizes even such conduct since it is defining the operation of a motor vehicle as such when the driver sits behind the wheel with the key in the ignition and the engine running. If you just want to take a rest or warm up in the car, do not sit behind the wheel, take a seat in the back or a passenger seat. Also, please make sure that you are parked legally. You may still be fined for the engine idling, especially in the City of New York, but at least you would not be arrested. Yet another kind of DWI/DUI arrest is when undercover police officers are following people exiting bars or restaurants. If you have been arrested for DWI/DUI, contact experienced DWI Lawyer. DWI Lawyer has many years of experience handling DWI cases in New York.

Many drivers are asking whether they should agree to a chemical test offered by police. Under the law, if you are driving, you are giving implied consent for such a test on a lawful request from the police officer. Nevertheless, you will be forced to do such test only if there is a third party who was injured or died as a result of a car accident where you were involved as a driver, and police had reasons to believe that the driver was drunk. Such mandatory test may be conducted only on a court’s order based on the sworn affidavit of a police officer.

If the test is not done pursuant to a court’s order, refusal to do such chemical test will result in the suspension of the driver’s license and subsequent likely revocation of the license for the period of at least one year. If you are sure, that you did not drink too much, there is no sense in refusing the test, because it would not show a high level of Blood Alcohol Content (“BAC”). In case of a test refusal, the driver at the first appearance in Court (arraignment) will be issued a Notice of DMV refusal hearing. It is very important to hire an experienced DWI lawyer for the client’s representation at the DMV hearing. In case police officer appears for such hearing, an attorney will have a chance to cross-examine the officer and show Administrative Law Judge (“ALJ”) any possible violation of client’s rights by the officer if that took place. If a police officer did not have sufficient reason to stop the car and did not have probable cause to arrest the driver, did not read the driver refusal warning in a clear and unequivocal language, and if the refusal of the driver to do the test was not clear, ALJ may dismiss the case and restore the driver’s license. Please also do not forget that the official transcript of the cross-examination of a police officer at such hearing may be later used in plea negotiations with the prosecutor in the criminal case or may be used at the jury trial if the case goes that far. DWI Lawyer carefully prepares for DMV refusal hearing when representing a client charged with DWI/DUI. DWI Lawyer uses the transcript of DMV refusal hearing in a criminal case if necessary to assist his clients. Under New York State law, operating of a motor vehicle with BAC of 0.08% or more is a crime, punishable by up to one-year jail, up to 3 years of probation, fine, various alcohol treatment programs, revocation of driver’s license for 6 months or one year, and mandatory installation of the Ignition Interlock device on any car the driver owns or operates for a period of at least one year. If such offense occurred within ten years from the prior DWI misdemeanor conviction or with a minor passenger who is 15 years old or younger (“Leandra’s Law”), such driver will be charged with a felony, punishable by up to 4 years in jail, up to 5 years of probation, as well as fines and other conditions of the sentence. The third such crime within 10 years period may be punishable by up to 7 years in jail. In case BAC is 0.18% and above, there will be a charge of Aggravated DWI.  At the same time, if BAC of the driver is above 0.05% but less than 0.08%, such driver may be arrested and charged with DWAI under NYS VTL Section 1192.1, which is equivalent to a traffic infraction and is not a crime. When BAC of a driver is 0.05% or below, in the absence of other indication that the driver’s ability was impaired by alcohol, such driver cannot be charged with DWI or DWAI. Consumption of one alcohol drink is raising BAC by approximately 0.02% -0.03% for an average built man. One drink is approximately equivalent to one-shot (1.5 oz.) of hard liquor (80 proof), a glass of wine (5 oz.) or a can of beer (12 oz.). It should also be considered that BAC is lowered every hour by 0.02% when you are not drinking. This data should be taken carefully, because other factors may influence the above calculations (e.g. weight of the driver, consumption of food, etc.)

What happens during the DWI/DUI arrest? Usually, a police officer will offer the driver to do the test using portable breathalyzer on the scene. Also, the driver may be offered various standardized field sobriety tests, such as walking straight line, one-leg stand with counting, and gaze nystagmus test. If a police officer is convinced that the driver operated the motor vehicle while intoxicated, he will continue with the processing of the arrest and will bring the driver to the specialized police precinct with the stationary breathalyzer. Every county in the State of New York has such specialized police precinct (for example, in Brooklyn it is 78th precinct NYPD). Please note that in such specialized police precincts there is usually a surveillance video camera installed. Video recording from such a camera may be used by the prosecutor against the defendant during a criminal trial.

After the processing of arrest, the police officers will bring the defendant to the local criminal court where he was arrested. Within approximately 24 hours since the time of arrest, the defendant will see the judge and will be formally charged. The defendant will be directed to do screening and possibly assessment with a certified treatment provider; the defendant’s driver’s license will be suspended in most of the cases by the judge. Also, during the first appearance in court, the judge will decide the issue of bail. The amount of bail, if any, is set by the judge based on the request of the prosecutor and the arguments of the defense attorney. It is very important for the defense attorney to let the Court know all necessary arguments for the defendant’s release without bail or for reasonable bail to be set. It is also very important to arrange that the relatives and/or close friends of the defendant are present in Court at arraignment, so in case the bail is set they can post it so that the defendant be released. While you have your criminal case in Court, it is very important to have a private attorney from the very beginning, because free attorneys are overwhelmed and must handle the huge caseload, which makes it physically impossible to pay close attention to the very technical field of DWI prosecution. This is for sure may lead to a substandard defense of the clients.

Often times we have clients who were already arrested for DWI in the past. Without proper legal representation during their first DWI/DUI case, that leads to a misdemeanor criminal conviction, and being arrested the second time within 10 years for DWI, those people find themselves in a difficult situation with such serious consequences as a felony conviction. If the driver had an experienced attorney the first time around, he would have had better chances in avoiding a criminal conviction. Now, when arrested for the second DWI within 10 years, besides criminal conviction such driver is facing more serious punishment.

DWI cases are technically difficult, take a long time to resolve and require substantial financial investment on the part of a client. There are several collateral consequences of any arrest, especially DWI arrest. For example, if the defendant had any state professional licenses, such licenses and the employment-related to these licenses may be suspended (e.g. CDL license and TLC license, employment as home health aide (“HHA”)). Besides, police may initiate forfeiture proceedings for the motor vehicle that was driven during DWI arrest. Such civil forfeiture usually is possible to settle by paying a civil fine, and conducting alcohol and/or drugs screening and, possibly, treatment. Often times, the condition of a resolution of the criminal case without a criminal conviction is the completion of extended alcohol and/or drugs treatment programs, various classes, community service, or wearing a special ankle bracelet (“SCRAM”). All of this requires time and money. Any violation of treatment program may result in an extended period of treatment and other court’s sanctions up to criminal conviction and incarceration. It is very important, that during such long and complicated process, there was an experienced attorney specializing in DWI cases who is always available to the client for counselling and advice, and who would prevent the defendant from making a mistake, and who would effectively communicate to the prosecutor and the Court all facts and arguments in favor of his client.

In case there was a car accident before the DWI arrest, it is likely that after some period of time the driver will be contacted by the insurance representatives. It is very important to be very accurate while talking to the insurance company’s representative, so on one hand you do not make damaging admissions that can be used against you in the criminal case, and on another hand, you do not make false statements that may lead to a new arrest. Sometimes, our attorneys talk to the insurance representatives themselves to protect the rights of the clients.

Many people believe, that if they plead guilty to the criminal charge, they will be fined and that will be the end of the case. Many people do not see a big problem with this. It is true, that from the first glance it is hard to comprehend all consequences of such DWI criminal conviction, such as loss of license and installation of Ignition Interlock device (which costs money and which by itself creates inconvenience for the driver).

Besides that, there is a system of civil responsibility fines by DMV just for the fact that the person was convicted for DWI related offense. In the beginning, all these nuances are not seen for the driver who was arrested for DWI first time, and who for the first time is facing this dilemma, not even talking about inconvenience for the person whose license is revoked to move around, work, for a period of 6 months to one year. All of these details illustrate that in such kind of criminal cases you should hire a not only professional attorney specializing in such matters, but you should do it as soon as possible in order to avoid complications in the future and to the full extent to use all options for the timely resolution of the case.

In order to reach a plea bargain with a prosecutor for a non-criminal disposition of the case, defense attorney needs to show to the District Attorney’s office that police made enough mistakes. We also would like to stress, that while pleading guilty to a criminal charge of DWI, you are getting a criminal conviction for the rest of your life, thus limiting your own opportunity for the career growth. Such criminal record will stay forever and cannot be expunged. That is why it is necessary to do everything that is possible to prevent such conviction, even if it means going to a jury trial. If it is necessary, DWI Lawyer takes DWI cases to a jury trial, where the District Attorney’s office must convince the jurors beyond a reasonable doubt, that the driver is guilty of those charges for which he was arrested and charged.  If you any additional questions please contact DWI lawyer, Sharifov & Associates, PLLC.