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New York City DWI Lawyers

• Kaye, Jonathan: If you have been arrested for suspicion of driving while intoxicated, (DWI) be advised there are numerous factors that can work in your favor and result in the dismissal of your case. For a conviction to be rendered, the burden of proof is on the People of the State of New York, meaning the arresting officer and the prosecution. All aspects of the charges must be proven, which includes but not limited to proper administration of sobriety tests, chemical tests, probable cause and search and seizure protocols and following the law. Each of these human, mechanical or procedural factors are subject to error. We review all of them and determine which can work in your favor. ARRESTING POLICE OFFICER ERROR. The judgment of the officer who stopped you could be in error for any number of reasons. Furthermore, his administration of correct procedure after the arrest could be improper. Here are examples of what can hurt the prosecutions case and therefore help you. THE OFFICER FAILED TO READ YOUR MIRANDA RIGHTS. If you are taken into custody or the police question you with the purpose of eliciting an incriminating response, they must read you your rights beforehand. If he fails to read you your Miranda rights and obtain a valid waiver of these rights, then any statements obtained after arrest, as long as they are the result of officer questioning and not so-called Òspontaneous, unsolicited statementsÓ, will most likely be thrown out of court. THE OFFICER DID NOT HAVE PROBABLE CAUSE FOR STOPPING YOU. After the officer stops you, he may not arrest you, put you in handcuffs and take you away for administration of chemical tests unless he has evidence that the crime of drunk driving has occurred. If this happens, you are entitled to what is termed suppression hearing during which a judge determines whether the arresting officer had probable cause. At these hearings, the officer is cross-examined by us, and while the judge usually sides with the prosecution, the defense has the opportunity to expose problems with the investigation. As a result, the District Attorney often times will lessen the charge or work with us to settle the case. THE OFFICER MISTOOK THE REASON FOR FAULTY DRIVING. Sober drivers make mistakes all the time: inappropriately wide turns, weaving in and out of traffic, drifting out of their lanes. Drivers talk on cell phones or become distracted by the kids. The officer can mistake any of these as signs of drunk driving, when in reality they may be nothing more than unsteady driving from a merely inattentive, but sober driver. Further, fatigue can cause a driver to exhibit these same erratic driving responses. The officer could have confused the miscues of a drunk driver with those of someone who is drowsy and exhausted. YOU WERE STOPPED WITHOUT JUSTIFICATION. You may not be pulled over arbitrarily by a police officer. There must be reasonable suspicion substantiated by specific articulable facts foe an officer to stop you. It this standard cannot be metin a suppression hearing, as described above, your case will likely be dismissed. THE OFFICER MISJUDGED THE LEVEL OF INTOXICATION. The Alcohol Behavior Research Laboratory at Rutgers University did a study, which demonstrated that police were no better at judging intoxication levels than were bartenders or social drinkers. Furthermore, none of these groups were able to judge levels of intoxication accurately more than one quarter of the time. When a prosecutor makes an appeal to the jury based on the officerÕs ability in this regard, his opinion deserves to carry no special weight. Additionally, police officers ordinarily cite smell of alcohol on the breath as proof of the suspects intoxication. Any chemist knows that alcohol (ethanol) has no odor. What causes the smell of alcohol are the other agents in the beverage. Drinking non-alcoholic beer will give the breath the odor that many officers will claim is the smell of alcohol. All that the odor of alcohol on the breath can indicate is that the suspect probably consumed some alcohol recently. It does not confirm that ones blood alcohol content (BAC) is greater than .08% level required to demonstrate legal intoxication. THE OFFICER FOUND NO INDICATION OF MENTAL IMPAIRMENT. Toxicologists know that a degree of mental impairment always precedes physical impairment, if the impairment is being caused by the consumption of alcohol. Police officers often report that persons they arrested were coherent in understanding and answering questions, and following directions throughout the investigation and arrest. It is well established scientifically, if mental impairment due to alcohol was not present, then it follows that neither was physical impairment due to alcohol. There may always be physical impairment stemming from any number of factors, such as sickness, injury, age, obesity, nervousness, or just a general lack of coordination. The prosecution must prove that any observed physical impairment is caused by the alcohol in question. LACK OF CORRELATION BETWEEN SPEEDING AND DWI. While speeding is against the law in itself, studies have demonstrated that speeding is not the correlative factor to driving while intoxicated. A speeding driver is as likely to be sober as drunk, and so speeding is not evidence that the driver is drunk. An officer alleging that he pulled a driver over for speeding as evidence of DWI maybe basing his action on invalid assumptions. THE OFFICER MISTOOK OTHER SYMPTOMS FOR INTOXICATION. Police use preprinted forms filing DWI reports. These contain boxes which the officers simply check off to indicate that the suspect had Òbloodshot and watery eyes,Ó Òslurred speech,Ó Òunsteady,Ó and a Òflushed face.Ó In New York State there are presently no video cameras in the police cars, so these statements are usually left unchallenged by an inexperienced DWI lawyer. As we all know, numerous other conditions can cause these symptoms. Allergies, exhaustion, sleeplessness or eyestrain could make ones eyes bloodshot. Anger over the traffic stop could cause ones face to flush. Embarrassment or becoming flustered could cause one to slur his or her words. Yet, the officer may not take these other causes into account, however obvious it is that these behaviors are just as likely to come from causes not related to alcohol consumption. BREATH ALCOHOL TESTING ERRORS: Many factors render Blood Alcohol Levels even more prone to inaccurate results than field tests. ERRORS INHERENT IN BLOOD AND BREATH TESTS FOR INTOXICATION. Assuming that the test machines are in standard calibration and that the tests were administered flawlessly (a rare scenario), experts still acknowledge DWI breath tests contain an error rate of plus or minus .02%, and blood tests have a error rate of plus or minus .005%. When you add in the factors below, further questions can be raised about test results. HEARTBURN CAN GIVE A FALSELY HIGH READING. The breath test is designed to test the amount of alcohol present in the air in your lungs. If you suffer from heartburn, GERD (gastroesophageal reflux disease) or acid reflux, alcohol from the stomach can travel back from the stomach to the throat or mouth. When you blow into the breath test machine, what is measured in these instances is the mouth alcohol plus the air in your lungs. This can raise your reading on the test falsely by a factor of 4, meaning that an actual blood alcohol level of .04 would read as .16, double the legal limit. If you had just eaten a spicy meal and were experiencing heartburn when you took the test, you might give a very high false reading. Even a slight, unnoticeable regurgitation can result in mouth alcohol being blown on the test. MOUTH ALCOHOL FROM OTHER SOURCES CAN ALSO AFFECT TEST RESULTS. Mouth alcohol can come from sources other than belching or heartburn. Decaying food particles trapped between the teeth in dentures, braces, cavities or impactions will tend to form alcohol in the mouth. So would latent alcohol from having recently taken cough syrup, cold medicine, homeopathic preparations, mouthwash or used various breath fresheners. Like alcohol burped up from acid reflux, latent alcohol in the mouth from these sources can also dramatically raise breath test levels. THE MACHINES ALSO READ OTHER CHEMICALS. People who work around chemicals can absorb these compounds and these may show up in lung tissue. Such things as nitrous oxide, acetonitrile, ethylene, toluene, isopropanol, if found inn the lung tissue of a DWI suspect, can give a falsely high reading on the breath test. Recent exposure to any type of volatile fumes (gasoline, paint, lacquer, etc.) can falsely elevate test results. A LOW CARB DIET CAN FOOL THE MACHINE. When a person is eating a high protein, low carbohydrate diet, such as the Adkins Diet, the body produces compounds called ketones during metabolism. When a person then consumes carbohydrates, as in drinking alcohol, these ketone bodies in the blood can produce another form of alcohol, isopropyl alcohol. Most breath testing machines do not distinguish between the two even though it is only the ethanol that causes impairment. A falsely high test result can result. If you are hypoglycemic, borderline diabetic or if you have diabetes, consumption of alcohol, even in small amounts, will cause your body to convert elevated levels of acetone into isopropyl alcohol. YOUR BLOOD ALCOHOL LEVEL WAS STILL RISING. When you consumed your alcohol, may have more consequences on your test reading than how much you consumed. The reason is because alcohol can take up to 3 hours to absorb fully into the bloodstream. In other words, your peak Blood Alcohol Level may come at the station house when taking the breath test and could be twice as high as your level when you were particularly if you consumed the alcohol shortly before you were stopped. Your Blood Alcohol Level may have been .07 when you were stopped but an hour later at the police station when the alcohol has been fully absorbed, the test reads .14. No law mandates a Blood Alcohol Level above .08 at a police station; itÕs the level when you were driving that counts. This is another potential source of breath testing inaccuracy. INDIVIDUAL VARIATIONS IN YOUR RATION OF BLOOD TO BREATH. Across the general population, there is a conversion ration that breath machines use to convert a breath alcohol reading to a blood alcohol reading. The machine assigns this value at 2,100 to 1. Fundamental to breath testing, is the assumption that the subject being tested conforms to this ration. Scientists, however, have disclosed widely different ratios among individuals across the population. And, if a personÕs breath-to-blood cvolnversion ratio is lower than 2,100 to 1, a breath test will reveal a blood alcohol level much higher than it actually is. BREATHING TECHNIQUES AND TEMPERATURE CAN AFFECT TEST RESULTS. Variances in the duration and volume of the breath sample may result in a false high or false low reading. The machine is calibrated to receive a breath sample that lasts over 10 seconds in delivery time, which usually translate to the delivery of approximately 2 liters of air. A longer breath sample may yield a much higher amount of alcohol being registered. Conversely, a shallow breath hyperventilating ,may result in mouth alcohol being blown, again giving a false high reading. Even breath temperature may affect results. The machines are calibrated to record breath blown at a temperature of 34 C., just a few degrees below normal body temperature. Even a slightly higher temperature can give a falsely higher reading. Such can occur from fever, sitting in the back of a hot squad car, exertion from dancing at a club, sitting in a hot tub and so on. Due to various physical conditions such as chronic lung problems (emphysema, asthma, bronchitis or chronic obstructive pulmonary syndrome) or dental problems, many persons are not suitable candidates for breath alcohol testing, yet these same individuals are given breath alcohol tests day in and day out, with little regard for the physiological differences among individuals being tested by one, generic machine. TEST RESULTS MAY BE CONTAMINATED. Radio waves generated by any number of electronic devises such as police radios, radar guns, scanners, computers, etc., can interfere with electronic circuitry in blood or breath testing machines. Radio Frequency Interference, or FRI as it is known, can influence a breath machine and render a false test reading. While the amount of inaccuracy is difficult to determine, it nevertheless adds yet one more degree of skepticism surrounding breath alcohol tests. A DISCONNECT MAY EXIST BETWEEN INTOXICATION SYMPTOMS AND TEST. A test reading is only one factor in a DWI case. Sometimes the test reading is inconsistent with other evidence such as the field sobriety tests, officer reports of the suspects behavior, etc. As well, specific symptoms can be observed at different levels of intoxication and if tghe DWI suspects other indicators do not conform to what would be expected from the test results, this disconnect calls the entire case into question. That is, the expected level of impairment was not evident at the reported Blood Alcohol Level test results.
• Gitlin, Bruce: Penalties for a DWI/DUI/drunk driving conviction in New York state are severe. A first-time offense can lead to a suspended license, fines, license revocation and jail time. Multiple offenses, and offenses involving injuries, property damage, children and a refusal to undergo breath-testing, can lead to further financial expense, additional jail time and loss of driving privileges. Additionally, DWI/DUI/drunk driving convictions can lead to problems with employment and other areas that involve routine background checks. A DWI/DUI/drunk driving conviction can lead to the withdrawal of a job offer and termination of employment, especially when the job position involves driving.
• McMillan, Stewart: The New Crime of Aggravted DWI In November 2006 New York State enacted the new crime of Aggravated DWI. Under the new statute a driver whose chemical test (blood, urine or breath) reading is .18% or higher (of their blood alcohol content) or "BAC" is dealt with much more severely than in the past. Drivers whose BAC is .18% or more are now charged under this statute which contains enhanced penalties. It calls for a fine of not less than $1,000 dollars or up to 1 year in jail, or both. If a driver is convicted of Aggravated DWI the law also now requires that the driver install a breathalyzer device attached to his/her car's ignition, possibly for the entire term of probation, of three years (that is if you are permitted to drive at all). For operators of taxicabs, buses or other commercial motor vehicles including semi-trailers or rigs, the stakes are even higher. If you are charged with DWI/DUI while operating such a vehicle - it is now a felony. Moreover, you are subject to losing your ability to drive (i.e. your livelihood could be in jeopardy). Under the new law, a prosecutor or assistant district attorney no longer has the ability to reduce this charge (for one charged with DWI or DUI) to a violation or DWAI. After November 2006 if your test reads above .18% the best plea offer you can now hope to be granted is a misdemeanor. That is just one of many reasons why it is so important that you consult with a lawyer or attorney experienced in defending drunk driving or DWI related offenses.
• Kay, Elliot: When people drive while intoxicated, their physical and mental abilities become impaired to the point where they are no longer capable of driving a motor vehicle without putting the lives and safety of themselves and others at risk. For this reason, it is illegal for any driver in New York to operate a motor vehicle with a blood alcohol content level (BAC) at or above 0.08%. If you are found to be driving with a BAC that meets or exceeds this legal limit, you will be arrested and charged with driving while intoxicated (DWI). Three Types of DWI Arrests Under New York state law, a person can be arrested and charged with DWI under three separate theories: ÒPer Se law,Ó ÒCommon law,Ó and ÒDriving While Ability Impaired by Alcohol.Ó Per Se law: This theory gives police officers the authority to arrest an individual if his/her BAC is determined to be at or above 0.08% after conducting a chemical test (breath, blood, or urine test). The driverÕs BAC must be above the legal limit at the time he/she was driving to be prosecuted under Òper seÓ law. Common law: Under this theory, a driver can be arrested and charged with a DWI if the police officer comes to the conclusion that he/she was intoxicated after analyzing the evidence of the investigation and the arrest. Furthermore, a driver does not need to have his/her BAC calculated in order to be prosecuted under the common law theoryÑhis/her arrest is based solely on the police officerÕs observations and opinion of the driverÕs behavior. The prosecution must also prove that the driver was intoxicated at the time of the arrest in order to be successful in court. Driving While Ability Impaired by Alcohol (DWAI): This is a lesser charge than a regular DWI, and results in less serious consequences. A person can be arrested for DWAI if a police officer feels his/her ability to safely operate a motor vehicle has been impaired by alcohol. DWI Penalties A DWI conviction will result in multiple legal penalties, such as fines, probation, alcohol treatment workshops, drivers license suspension, a mark on your permanent record, and even time in jail. However, certain factors will result in harsher penalties, such as the presence of minors in the car, or if your BAC level is .18% or higher. Contact New York City DWI Attorneys If you have been charged with DWI, you need a reputable and aggressive New York City DWI attorney on your side. An experienced and knowledgeable attorney can protect your rights, and confidently guide you through the legal process.
• McGruder, David: If you or a loved one has been arrested for Driving While Intoxicated (DWI), you need to contact an attorney immediately. In New York, a Blood Alcohol Content of .008 is the legal limit as it was recently lowered from .010. It is important to retain an experienced attorney for a DWI arrest because just merely an arrest for this charge can lead to your license getting suspended and your car being impounded. An experienced Criminal Defense Attorney can help you get your license back and obtain your car from police impound. Furthermore, an experienced Attorney can in many cases effectively challenge the accuracy of the Police Blood Alcohol Content Reading, represent you in DMV ÒRefusal HearingsÓ and help investigate an accident scene if necessary. Equally important as all of the above is that an experienced Criminal Defense Attorney can be an effective and zealous advocate at trial if necessary. It is also extremely important to retain an attorney who can successfully negotiate plea deals that donÕt saddle you or your loved ones with a criminal record.
• Cohen & Foreman: What you need to know if you've been charged with a DWI While a criminal charge, DWI is unique in that it is a violation that does not come under the penal law, but under the Vehicle and Traffic Law. Because of the unique nature of the charge there are other collateral consequences of a DWI charge that a person must be made aware of. If youÕve been charged with a DWI, itÕs important that you seek expert legal counsel. DWIÕs are complex charges, and can involve both your criminal and motor vehicle records. In certain cases, regardless of the criminal conviction outcome, your driving privileges could be suspended and your vehicle forfeited. If your family or business relies on your vehicle, a DWI charge or conviction could have devastating consequences.
• Greenfield, Scott: WHAT DO YOU NEED FROM A CRIMINAL DEFENSE LAWYER? A criminal defense lawyer is not your new best friend, your teacher or your therapist. He is the one person who stands between you and the awesome power of the government. You need a criminal defense lawyer who understands that his job is to serve your needs. The sad truth is the there are many people in prison in the United States who have been convicted of either a crime they did not commit, or a greater crime than they did commit. How is this possible? There are two primary reasons. The government has two things that individuals do not: 1. Unlimited Resources 2. A system that is designed to facilitate conviction The individual accused of a crime in this country has only one thing going for him, his right to counsel. A lawyer is the only person who stands between the accused defendant and conviction.
• Weiswasser, Howard: Can I be arrested for questioning? No. Police can request that you accompany them to a police station for questioning, but you are not required to go unless you have been arrested for an offense. It is not advisable to speak with the police until you have first spoken with your attorney. You should ask for a lawyer or independent witness to be present during questioning. What happens at an arraignment? A suspect has the right to be arraigned without unnecessary delay, usually within two court days, after being arrested. He or she will appear before a judge who will read the offenses in whichÊthe suspect is officially being charged,Êthey will be informed of their constitutional rights, and advised ofÊapplicable penalties.ÊAt the arraignment, an attorney may be appointedÊin the event of financial hardship, and bail can be raised or lowered. ÊA suspectÊmay also ask to be released on personal recognizance at this time, even if bail was previously set. If charged with a misdemeanor,Êa suspectÊcan plead guilty or not guilty at the arraignment. Or, if the court approves,Êa suspectÊcan plead nolo contendere, meaning the charges will not be contested. Legally, this is the same as a guilty plea, but it cannot be used againstÊthe suspectÊin a non-criminal case. If misdemeanor charges are not dropped, a trial will be held later in court of law. If charged with a felony, however, and the charges are not dismissed, the next step is a preliminary hearing. What is bail? Bail is money or other property that is deposited with the court to ensure that the person accused will return to court when he or she is required to do so. If the defendant returns to court as required, the bail will be returned at the end of the case, even if the defendant is ultimately convicted. However, if the defendant does not come to court when required, or violates his or her bail conditions, the bail will be forfeited to the court and will not be returned. ÊWhat happens at a bail hearing? The accused is brought before a magistrate or judge when an arrest happens for a violation of a criminal law. The magistrate or judge will conduct a pre-trial bail hearing resulting in four possible results: ¥ Recognizance - This is the defendant`s written promise to appear in court on the date set and abide by the terms set by the magistrate or judge. No monetary pledge, cash deposit, or security by property or professional bondsman is required. ¥ Unsecured Bond - This release pending court appearance is based on the defendantÕs written agreement to appear in court on the date set and abide by the conditions set by the magistrate or judge. It is backed by an agreement by the defendant to forfeit money to the court if she or he does not appear in court on the date set. ¥ Secured Bond - This is secured by either a cash deposit, a pledge of real or personal property, or a pledge by a third party that the defendant will appear in court on the date set and abide by the conditions of the release. The judge may forfeit any type of security in the event the defendant does not appear in court on the date set. ¥ Ineligible for Bail - The defendant is denied a release pending court appearance. The bail decision may be appealed to a judge who will re-examine the evidence. A violation of any agreement of release pending court appearance could result in the issuance of an "Order to Show Cause" why the release should not be revoked. What is probable cause? This is a difficult one. There is not a clear-cut rule establishing precisely what is and what isn`t probable cause. However, what has become apparent is that a finding of probable cause requires objective facts indicating a likelihood of criminal activity. A police officer's hunch, with nothing more, will not satisfy the requirements. Example: Officer Doright observes Tom and Dick walking down the street. Officer Doright has a hunch that Tom and Dick are up to no good. Armed with nothing more, Officer Doright goes to the local judge and attempts to get a search warrant for the boy`s home. Should a judge grant the warrant?Ê No. A police officer`s hunch, with nothing more, will not satisfy the probable cause requirement. However, if Officer Doright observed Tom and Dick conduct a drug deal, then probable cause would likely exist for a warrant to search their home. What is a plea bargain? Settling a criminal case is usually called a plea bargain. It means that the prosecution and the defense come to an agreement to resolve the case. The case can be settled at several points during the process, from before it is charged- all the way to trials doorstep. Usually, however, the best bargain can be obtained earlier rather than later in the process. And in many cases, it is a question that should be analyzed immediately so that good opportunities to settlement arenÕt given up because of pride or inattention.
• Michael Pollok: If you or a family member has been accused of a crime, it is important that you seek experienced criminal defense representation as soon as possible to help defend your legal rights.
• William Unroch: Being accused of a crime is a terrible ordeal.
• Ira London: The Court in Atwater also struck down the defendant's claim that "founding-era common-law rules" restricted a police officer's authority to make warrantless arrests for misdemeanors except in cases of "breach of the peace" (e.g., non-felony offenses that involve violence). Rather, the Court concluded that there was disagreement at common law over an officer's warrantless misdemeanor arrest power, and held that such arrests are not necessarily limited to instances of breach of the peace. The Court supported its final conclusion, that warrantless misdemeanor arrests do not demand the kind of constitutional attention requested by the defendant, with the following factors: Anyone arrested without formal process is entitled to a magistrate's review of probable cause within 48 hours Many jurisdictions have imposed restrictive statutes limiting warrantless arrests for minor offenses It is in the interest of police officers to limit such arrests, because of the costs to the police if the arrest is found to be unreasonable is simply "too great to incur without good reason" Preference for individualized review of Fourth Amendment claims when a defendant makes a viable argument that an arrest was unusually harmful to privacy or physical interests.
• Richard Landes: Many people believe thay can talk their way out of a problem. They think that if they can just explain their side of the story to the police, they won't be arrested or may be charged with something less serious or better yet, won't be charged with a crime at all. While there are two sides to every story or event, this is not the time to tell yours. It will never help you to talk to the police or make a written statement. In fact, it will end up hurting you. Chances are, by the time the police or F.B.I. are contacting you, they have already made the decision to arrest you. So if they can get you talking, that's just more evidence they will use against you down the line. And if you tell them something that's not true, you may be charged with obstruction of justice. So when the police or F.B.I. ask you if you'd like to talk to them about some event they are investigating, ask you if you'd like to 'explain to them what happened in your own words', ask you if you'd like to tell them 'your side of the story' , ask you to help them 'straighten out a small problem they have with you' , my advice is always the same: politely tell them you do not wish to say anything at this time and would like to call a lawyer. The police will not like this response from you. Often, they will promise to 'go easier on you' or tell you that 'things will be much better for you if you'd just cooperate with them'. Don't you believe it. If the police happen to have very little evidence against you, your own words may end up giving them what they need to either make an arrest or get you convicted. So, the single most important piece of advice I can offer is this: do not, under any circumstances, speak to any law enforcement authority until you have consulted a lawyer.
• Gregory Smith: DUI arrest or conviction also affects driving privileges, including suspension of one's driver's license (usually by DMV), confiscation or impoundment of the driver's car, administrative costs and mandatory alcohol education and treatment programs. Many states require offending drivers to pay a reissue fee to get a suspended license back. In addition, some states require drivers convicted of DUI to install an "ignition interlock" device on their vehicles, which measures the driver's BAC (based on breath) and prevents operation of the car if more than a minimum amount of alcohol is detected.