Jonathan Nelson:
Driving While Intoxicated
In New York, what is commonly known as driving while intoxicated
(DWI) or driving under the influence (DUI) actually involves
several offenses, due to different statutes that define each
offense, and span from a violation to a felony.
The different offenses are generally determined by two factors:
the number of repeat offenses and blood alcohol content (BAC).
DWI: Driving While Intoxicated – BAC
of .08 or higher, or other evidence of intoxication
DWAI: Driving While Ability Impaired –
BAC of .05 to .08, or other evidence of impairment
DWAI / DRUGS: Driving While
Ability Impaired – by drugs other than alcohol
The chart below may help distinguish offenses and their
possible punishments:
Offense |
Mandatory Fine |
Jail Term |
Mandatory Drivers License Action |
Driving While Intoxicated (DWI) – Misdemeanor |
$500 – $1,000 |
1 Year |
Revoked for at least 6 months
|
Second DWI in 10 Years – E Felony |
$1,000 – $5,000 |
4 Years
|
Revoked for at least one year |
Third DWI in 10 Years – D Felony |
$2,000 – $10,000
|
7 Years
|
Revoked for at least one year |
Driving While Ability Impaired (DWAI) – Violation |
$300 – $500 |
15 Days
|
Suspended for 90 days |
Second DWAI in 5 Years |
$500 – $750 |
30 Days
|
Revoked for at least six months |
Chemical Test Refusal |
$300 Civil Penalty |
None |
Revoked for at least six months |
|
Many first offenders accused of DWI are able to plea bargain
to a lesser charge of DWAI, which is a violation, not a crime.
Ron Cook:
DWI - Driving
While Intoxicated (NY rules)
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 .10% 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 Yorks 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 officers 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 motorists speech was slurred, that the motorist had blood shot and
watery eyes, that the motorists complexion was "flushed," and that he or she
swayed when walking.
Q. But cant 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 ones 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, arent 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
Ive 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. You
have a right to call and speak with an attorney, but the police need not wait
for the attorneys 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 Yorks 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 six month 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
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 .10 or
greater.