Robert Mercaldi:
IF I GET STOPPED FOR A DWI
SHOULD I BLOW?
By:
ROBERT L. MERCALDI, ESQ.
ATTORNEY AT
LAW
Whether or not a person
should consent to a chemical breath test is a question that many
of my clients wish they knew before they were charged with
Driving While Intoxicated. The reader should keep in mind that
every case is different and what is written below is nothing
more than a general review of the manner in which the majority
of first time DWI cases progress in Suffolk County.
A little background before we
begin. Under the Vehicle and Traffic Law section 1192, if a
motorist is found to have a BAC of .06 - .08% he or she can be
charged with Driving While Ability Impaired (DWAI). If a
motorist is found to have a BAC of greater than .08%, he or she
will be charged with Driving While Intoxicated (DWI).
The difference
between these two offenses is significant. DWAI is a violation,
not a crime. DWI is a misdemeanor, and therefore it is a
crime. Once an individual is convicted of a crime, he or she
will then have a criminal record. For most of us, this becomes
an issue when you fill out a job application, asking whether or
not you have been convicted of a crime. The wrong answer may
lead to a rejection of employment. Furthermore, the penalties
and consequences of crimes are generally more severe than they
are for violations.
In the criminal
justice system, more than 95% of the cases are resolved by some
form of plea bargaining as opposed to trials. Plea bargaining
is the procedure in which a defendant will plead guilty to a
reduced charged to avoid the more severe penalties of the
original charge if he or she is found guilty after a trial. As
such, the Suffolk County District Attorneys Office, has certain
guidelines that they tend to follow with respect to plea
bargaining.
In Suffolk
County, if an individual without a criminal record is charged
with DWAI (where the individual's BAC was between .06 - .08%),
the charge will usually be reduced to a speeding ticket upon
completion of community service. The speeding ticket will
result in a small fine and points on your license. Keep in mind
that whenever a person is convicted of a traffic offense, there
is always a possibility that his or her license will be
suspended depending on that individual's prior record of
convictions for traffic offenses.
If a person
without a criminal record is charged with a DWI, usually the
district attorney will convey an offer to plead guilty to the
reduced charge of DWAI after the defendant completes community
service. The penalty for a DWAI is usually a $500 fine and a
$75.00 surcharge. Also, the defendant's license will be
suspended for 90 days, however a conditional license will be
available if the individual participates in the Drinking Driving
Program.
Where an
individual without a criminal record is charged with a DWI, and
it is alleged that he has a BAC of .15% or greater, the district
attorney generally will not offer the plea bargain mentioned
above. The reason is simple, if a person has a BAC of .15% or
greater, it can be assumed that individual did not have a mere
'buzz', but that he or she was intoxicated to a point where his
or her abilities would be significantly impaired thereby
creating more of a danger to himself or herself and others on
the road.
Once an
individual is convicted of a DWI, as stated above, that
individual will have a criminal record. Also, the penalties are
more severe for a DWI than for a DWAI. The individual will have
to pay increased fines, he or she will face a longer license
suspension and the judge will usually sentence him or her to
three years probation. Also, if an individual with a prior DWI
conviction, gets charged with a second DWI, it will be charged
as a felony rather than a misdemeanor which can result in a jail
sentence instead of probation.
With this in
mind, the answer to the question, 'should I blow' is yes, unless
you have had so much to drink that your BAC would be .15% or
greater. Of course, you should keep in mind that your BAC will
be a result of many factors including but not limited to the
amount of drinks consumed, the time period that the drinks were
consumed and the weight of the individual.
The next logical
question is wouldn't it be better to always refuse to submit to
the breath test? In my opinion, the answer is no. If you
submit to the chemical test and the result is lower than .15%,
there is a good chance the criminal proceedings will result in
plea bargain to a DWAI as stated above. Also, if you blow, and
the reading is less than .06, you will not be charged with any
crime. The possibility also exists that you may blow a .06 -
.08 which will result in you being charged with a DWAI instead
of a DWI, and you may thereafter be able to have the charge
reduced to a speeding ticket. In these situations, if you had
refused to submit to the chemical breath test, you would end up
being charged with a DWI instead of a either a DWAI or possibly
not being charged at all. Also, once a person refuses to submit
to a chemical breath test, their license or privilege to obtain
a license will be suspended for six months, and they will have
to pay an additional civil penalty in additional to the criminal
fines for the DWI..
However, you
should keep in mind that if you blow, there will be more
evidence of your intoxicated condition for the district attorney
to use against you at trial than if you did not, but as
discussed above, most cases do not go to trial.
Keep in mind that
in the interests of keeping this article short, there are many
important details of the DWI case that are not discussed or even
mentioned. More importantly, this article should not be used as
a substitute for the advice and consultation of an attorney.
Every case is different and what is written above may not apply
to certain situations. The safest and most intelligent thing to
do is to avoid drinking and driving altogether.