Arrest and Testing
Q. I was given two tickets that say DWI, why is that?
A. In New York, there are two different charges that pertain to Driving While Intoxicated (DWI). The first is called Driving While Intoxicated, per se, and is set out in Vehicle and Traffic Law § 1192(2). This section makes it illegal to drive a motor vehicle with .08% or more of alcohol in the bloodstream. It makes no difference under this charge whether the motorist appears intoxicated. All that counts is the amount of alcohol in the blood.
The second is Driving While Intoxicated and is often called "common law DWI." Created by Vehicle and Traffic Law § 1192(3), it does not require a blood or breath test. All that is required is evidence, generally the opinion of the arresting police officer, that the motorist was intoxicated.
Q. What does "intoxicated" mean under this "common law" section?
A. Intoxication, for the purpose of Vehicle and Traffic Law § 1192(3), was defined by New York's highest court in a case called People v. Cruz. It is a condition where the motorist lacks the necessary physical and mental skills to operate a motor vehicle as a reasonable and prudent driver.
Q. If no blood or breath test is required, how is intoxication proven?
A. New York law is quite clear that a person who has seen intoxicated persons in the past, on numerous occasions, can give his or her opinion as to whether a person appears to be intoxicated. Thus, the police officer can (and will) give such an opinion.
Q. Is there any other evidence aside from the police officer’s opinion?
A. Yes. Generally a police officer will testify that the individual had a strong smell of alcohol on his or her breath, that the motorist's speech was slurred, that the motorist had blood shot and watery eyes, that the motorist's complexion was "flushed," and that he or she swayed when walking.
Q. But can't these signs be caused by other factors?
A. Certainly, and a competent DWI specialist (see, choosing a lawyer) can generally make the arresting officer admit that the smell of alcohol on one's breath is no indication of intoxication; that blood shot eyes can be caused by environmental factors such as a smoke filled room and that a flushed complexion can be the result of the nervousness that surrounds even the most routine traffic stop.
Q. That leaves sway and slurred speech, aren't these positive signs?
A. Not always, but that is where the choice of an attorney can be all telling. An expert at these cases can show a jury that the officer either did not hear slurring or that he or she came to a snap decision as to the manner in which the motorist spoke. The same goes for sway.
Q. Then, it seems the best decision is not to take the test.
A. While the decision may seem simple on its face, it is not. Whether to take a test is a complicated legal decision that should be made by a knowledgeable attorney.
Q. What if the arrest occurs late at night, how can an attorney make the decision?
A. An attorney who routinely handles these cases recognizes that the late night phone call is part of the job. Such an individual has many years experience in quickly assisting motorists at all hours of the night.
Q. How can I call a lawyer if I've been arrested?
A. New York law gives all motorists the qualified right to call and consult with a lawyer before deciding to take or refuse a test.
Q. What is a "qualified right"?
A. It essentially means that you have a right to call and speak with an attorney, but the police need not wait for the attorney's arrival.
Q. If I called an attorney at the time of my arrest, must I use him or her to represent me in court?
A. Definitely not. You are entirely free to choose an attorney after your release when you can make a careful investigation as to his or her credentials.
Q. If I refuse a test, will I lose my license?
A. Probably. Under New York's implied consent law, a motorist agrees to take a test when asked. The punishment for the first refusal to comply is a $500.00 civil penalty and a one year revocation of a license.
Q. Can a lawyer do anything with this penalty?
A. Maybe, but again, that is why you must seek the services of a specialist who thoroughly understands these rules and each and every exception (see, choosing a lawyer).
Q. Assume I took the test. Does that mean that I will not lose my license?
A. No. New York has also instituted suspension pending prosecution for motorists who score .08 or greater.
Q. So if the result of my test is say .14, does that mean my license is gone?
A. Maybe, but a specialist may be able to prevent that situation. In this regard Ed Fiandach sued the State of New York shortly after the law went into affect and litigated the constitutionality and operation of this statute through the United States Supreme Court. Although the law was ruled constitutional, the decision in Pringle v. Wolf, significantly weakened the affect of the law and made it much harder to take a license. An expert, such as Mr. Fiandach, knows how to use this case to the motorist’s benefit.