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New York City DWI Lawyers

  • DeLeon & Associates:

    Search & Seizure Protections

    The Fourth Amendment of the Constitution protects an individual against unreasonable searches and seizure of his or her person or property. A search may involve an inspection of the person or his or her surroundings or property. Government authorities may seize individuals by stopping them or otherwise restricting their movements. Property is seized when the government takes control of it. Usually, but not always, if a seizure of property is invalid, it is because the seizure was preceded by an invalid search.

    In the seizure of persons there has been considerable litigation involving when the government (usually the police) can restrict someone's movement. Police interactions with individuals may range from an investigatory stop to a full-blown arrest. The more freedom retained by the person when the police interact with him or her, the lower the level of suspicion required for the police to engage in that interaction. For example, if police merely stop someone to ask questions, all that is usually required is that the police have a reasonable suspicion that a crime has occurred or that the person is in need of assistance. If there is no control and a person is really free to leave, there is no seizure. However, in many instances where the police stop a person, that person has a reasonable perception that he or she is not free to leave. The first question may then be whether there actually was a seizure.

    If a person is subject to seizure, such as an arrest, that seizure can be made pursuant to a warrant. A warrant is a court order authorizing an arrest or search. Where there is a warrant, the seizure is presumptively valid. The presumption of validity can sometimes be overcome. For example, a warrant may be invalid if it was obtained by false or misleading statements to the judge. If the police do not have a warrant, the burden will be on the police to show that the circumstances warranted the seizure. In most instances, the police will have to demonstrate probable cause, that is, a reasonable belief that a crime was or is going to be committed and that the person seized was involved in the crime.

    If an arrest or other seizure of the person is invalid, then the person must be released. If the police obtained evidence as a result of the invalid arrest, the government may be prohibited from using that evidence at the person's trial. This is the exclusionary rule. This rule also applies to evidence that was obtained as the result of an invalid search.

    A search does not take place unless the investigation intrudes on a person's privacy. It seems clear there is no search if the police find something lying on the sidewalk or hanging out of someone's pocket. On the other extreme, if they look in a bedroom drawer, it seems pretty clearly to be a search. The distinction lies in the reasonable expectation of privacy. If someone has a reasonable expectation of privacy in an area of his or her person or property, police investigation of that area is a search. If there is no such expectation, or if the expectation is not reasonable, no search has been conducted.

    A search warrant must describe the area to be searched and what the police are searching for. The search must be reasonable in relation to the evidence sought. For example, if the police claim to be searching for a car, they can look in a garage but will not be able to look in a toolbox in the garage.

    Searches can also be valid if they are done with the consent of someone who has control of the property. This need not be the owner. During an arrest, police can search the arrestee and the immediate surroundings to search for weapons or evidence that might be destroyed. Following similar reasoning, police may search without a warrant where the search is necessary to protect against destruction or removal of evidence. This is a commonly used exception to the warrant requirement. Police may also conduct searches to protect the public from imminent danger, such as the planting of a bomb, or to search for fleeing criminals.

  • Wilens & Baker:

    The Consequences

    This year, over 2 million people will be arrested and charged with drinking and driving. Many of these people will not challenge the accusations against them and will just plead guilty to get it over with. What these people dont understand is that a conviction for drinking and driving can have severe long-lasting consequences that go above and beyond loosing your license.

    Did you know that a conviction for DWI
    can have the following consequences?

    • It can be the basis for a current employer to fire you and future
      employers to refuse you employment.
    • Your insurance carrier can label you a "high-risk driver" and significantly
      raise your rates.
    • Some countries use a DWI conviction as a basis to refuse you
      and your family entry into their country.
    • A second conviction for DWI could subject you to severe criminal
      punishment, such as jail time.

    These severe consequences are excellent reasons why people accused of DWI
    should FIGHT their case and not merely accept the police and prosecutors
    accusations. Unfortunately, criminal defense attorneys who do not specialize in
    DWI do not understand the intricacies of DWI law and do not possess the skills,
    experience, and resources to mount a successful defense.

    Our expertise in DWI law enables us to spot critical issues that can turn what first appears to be a prosecutors "slam dunk case" into a weak one. Our attorneys are proven "fighters," tough negotiators, known for making critical motions, and winning cases at trial. Our attorneys are skilled at analyzing the strengths and weaknesses of your case, explaining the law and science of DWI, evaluating your chances at trial, and providing you with all the necessary information to make informed choices before proceeding to court.

    The Penalties (According to NYS DMV)

    DWAI (Driving While Ability Impaired)

    Blood Alcohol Content more than .05% up to .07%

      nFine nJail Sentence nLicense Action

    n1st Offense

    		 n$300 - $500 nUp to 15 Days n90 Day Suspension

    n2nd Offense
    nWithin 5 Years

    		 n$500 - $750 nUp to 30 Days nMinimum 6 Month
    nRevocation*
    n3rd Offense
    nWithin 10 Years    		 n$750 - $1500 nUp to 180 Days nMinimum 6 Month
    nRevocation*

    DWI (Driving While Intoxicated)

    Blood Alcohol Content of .10% and over, or other evidence of intoxication

      nFine nJail Sentence nLicense Action
    n1st Offense n$500 - $1000 nUp to 1 Year nMinimum 6 Month
    nRevocation*

    n2nd Offense
    nWithin 5 Years

    		 n$1,000 - $10,000 nUp to 4 Years  nMinimum 1 Year
    nRevocation*

    n3rd Offense
     nWithin 10 Years

    		 n$2,000- $10,000 nUp to 7 Years nMinimum 1 Year
    nRevocation*

    ZERO TOLERANCE

    Drivers Under 21 (DMV Administrative finding of .02 to .07 Blood Alcohol Content

      nCivil Penalty nLicense Action nAdded Fee
    n1st Offense nMinimum $125 n6-Month
    nSuspension

    n$100 Suspension
    T    Termination Fee

    n2nd Offense

    		 nMinimum $125 n1-Year Revocation,
    nor until 21, whichever
    nis longer     		 n$100 Re-Aapplication
    nFee

    * The NYS Department of Motor Vehicles decides when your license can be returned. Its return or
    reinstatement, based on state law or regulation, is not automatic. You must reapply for your license
    and may have to take a test.

    Tips to Minimizing Your Risk of Being Convicted of DWI, Drunk Driving or Driving Under the Influence in New York

    • When questioned for DWI or drunk driving before arrest, you are not in custody for purposes of Miranda warnings. If you politely refuse to answer any of the cops questions concerning the DWI investigation, either before or after arrest, then there wont be any statements that can be used against you in court.
    • Field Sobriety Tests are completely voluntary. If you perform them, you may be arrested anyway. It may be better not to give the Police evidence that will be used against you in court. You can politely refuse to do the field sobriety exercises.
    • Contact a friend or relative from jail as soon as possible so they can hear you speak and note your state of sobriety.
    • Always be polite and respectful to the police officers. How you are perceived by a jury is extremely critical.
    • Some jurisdictions video the arrest, breath testing and/or booking process. Always be on your best behavior.
    • Make a detailed list of all the events before being stopped up to and including being released from custody.
    • Retain an experienced DWI drunk driving defense attorney to represent you. Only an experienced DWI defense attorney is able to spot your favorable issues and present them to a prosecutor, judge or jury.

    Remember, the best way to avoid a drunk driving conviction is to not drink and drive.

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