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DWI/DWAI

It is widely agreed that no area of criminal law is prosecuted more aggressively on Long Island and in the New York metropolitan area than offenses involving driving under the influence of drugs and alcohol.

Hardly a day passes where we are not exposed to the horrific drunk driving accidents in the media. This has created a very hostile environment for defendants charged with any drug or alcohol-related driving offense.

New York legislators have greatly increased the penalties for DWI in recent years, so if you are accused of drunk driving you may now face a real possibility of jail time.

The sooner you speak with one of our knowledgeable attorneys, the sooner your DWI case can be evaluated and a successful strategy can be established.

Being pulled over for a DWI can be a surprising, stressful, and an especially embarrassing experience. Although this is a natural reaction to being arrested, you must keep your rights in mind. You are innocent until the District Attorney proves your guilt beyond a reasonable doubt.

DWI defense is a complex area of law. The evidence in these cases often involves the subjective opinions of police officers or the reliability of breath testing machinery. You have the right to speak to an attorney, and when you speak to someone at The Law Offices of Brian A. Picarello, you can feel confident that your case will be handled by an attorney well versed in DWI law.

Levels of Offenses

In New York State there are varying levels of drunk driving offenses. The offenses are classified according to levels of intoxication and impairment as well as the accused’s prior criminal history of DWI-related offenses. The most well-known offense is Driving While Intoxicated (DWI). Please refer to Vehicle and Traffic Law Sections 1192.1, 1192.2, 1192.3, and 1192.4.

A driver has committed DWI when he or she operates a motor vehicle on a public roadway after having voluntarily consumed alcohol to the extent of being physically and mentally incapable of driving a vehicle in a reasonable manner.

People are presumed intoxicated when their blood alcohol level measures at .08% or higher (VTL § 1192(2)) after a chemical test of their breath (or blood or urine), commonly referred to as a “breathalyzer.”

If the person’s blood alcohol level is .18% or above, he or she will be charged with an Aggravated DWI (VTL § 1192(2)(a)). Additionally, when people refuse to take the test, or a test result is not obtained, they can still be charged with common law DWI under VTL § 1192(3), if the police officer concludes based on his observations of the suspect that he is intoxicated.

It is often more difficult for the prosecution to prove their case at trial in instances of common law DWI (VTL § 1192(3)) where they do not have the results of a chemical test to rely on.

Driving While Ability Impaired by Drugs or DWAI Drugs (VTL § 1192(4)) is a separate offense which is charged when there is evidence that a person operated a motor vehicle while under the influence of a controlled substance.

Here the evidence usually is in the form of a positive toxicology report evidencing the presence of a controlled substance in a suspect’s blood or urine, or from the police officer’s observations of the defendant at the time of arrest.

The lesser offense of Driving While Ability Impaired (DWAI) by alcohol, or VTL § 1192(1), is charged when a person has voluntarily consumed alcohol to the extent that his or her ability to drive a motor vehicle in a reasonable manner is impaired.

Someone registering between a .05 and .07 BAC will likely be charged with DWAI.

While DWAI is a traffic infraction and not a criminal offense per se, a conviction for DWAI carries with it a mandatory license suspension, substantial fines and penalties, as well as collateral consequences with regard to criminal records and enhanced penalties in the event of subsequent arrests.

Determining Intoxication

1. Standard Field Sobriety Tests

SFST’s are used by police officers to determine if a person may be intoxicated or impaired by alcohol. There are three tests that are recognized as valid in the State of New York.

1. Horizontal Gaze Nystagmus Test (HGN). Nystagmus is a natural behavior found in the eye. When a person’s eyes move to the side, there is an involuntary jerking or “nystagmus” that occurs. This action is amplified by the consumption of alcohol or drugs. The HGN test is not the most reliable way to identify a drunk driver. In fact, research indicates that a number of factors other than intoxication can cause a person to fail the test.

Many common medical conditions could lead to an incorrect test failure. Inner ear problems, influenza, hypertension, arthritis, and glaucoma are just a few of the conditions that were proven to affect a driver’s performance. Using substances such as aspirin, antihistamines, caffeine, and nicotine could also cause a driver to exhibit signs of nystagmus.

2. Walk and Turn Test. When performing this test, the individual stands in a heel to toe position while given directions. The officer will tell the person to walk nine steps, heel to toe, turn around, and repeat. The person is instructed on how to turn, and to count the steps aloud. The examiner looks for eight indicators of impairment:

  1. If the suspect cannot keep balance while listening to the instructions,
  2. Begins before the instructions are finished,
  3. Stops while walking to regain balance,
  4. Does not touch heel-to-toe,
  5. Steps off the line,
  6. Uses arms to balance,
  7. Makes an improper turn, or
  8. Takes an incorrect number of steps.

NHTSA research indicates that 79% of people who exhibit 2+ indicators in the performance of the test will have a BAC of .08 or greater

3. One Leg Stand Test. Here, the driver is asked to stand with one leg about six inches off the ground. He or she must estimate a thirty second time period, counting the seconds out loud. The officer looks for four indicators of impairment:

  1. Swaying while balancing,
  2. Using arms to balance,
  3. Hopping to maintain balance, and
  4. Putting the foot down.

NHTSA research indicates that 83% of people who exhibit 2+ indicators in the performance of the test will have a BAC of .08 or greater

The officers use these tests in addition to initial observation (how the driver talks, if there is an odor or alcohol on the driver’s breath, balance, etc.) in order to determine whether the driver is intoxicated. In addition to the three verified tests, a number of other tests are used to obtain evidence of intoxication. These include the Alphabet test, Countdown, and the Finger-to-Nose test.

2. Instrument Based Tests

There are two types of instruments based tests used to determine intoxication levels.
Breathalyzer Female

1. The Breath Screening Test. Here, an officer samples the individual’s breath in order to detect a presence of alcohol. Officers perform this test using a portable breath screening device, or PBT. The most common type of a breath screening device is the Alco-Sensor. It is used to determine the presence of alcohol on a driver’s breath, thus establishing the probable cause necessary to move forward.

Breath screening tools are not sufficiently reliable to be admissible as evidence in a trial but are used as a method simply to determine whether or not a person has ingested alcohol.

2. Chemical Test. This refers to a test of either a person’s breath, blood or urine, to scientifically determine the percent of alcohol in their blood stream i.e., their blood alcohol content or “BAC.” The most common testing method in drunk driving cases is the chemical test of the driver’s breath, commonly referred to as a “Breathalyzer.” This tool measures a person’s blood alcohol concentration through a chemical analysis of a breath sample.

Unlike the breath screening test discussed above, the chemical test of a person’s breath can be admissible at trial. It is conducted at the police precinct or central testing unit at police headquarters and involves a machine that is about the size of a desktop computer. The driver is asked to blow into a mouthpiece attached to a long hose connected to the machine. While this test is typically referred to as a breathalyzer, the “Breathalyzer” is only one of several brand-named chemical breath testing machines.

A blood or urine test can also be used to determine intoxication levels, however, this is typically seen only in cases where drug use is suspected or where there is an injury to the driver, which prevents breath testing. In the case of both blood and urine tests, specific procedures must be followed by law enforcement in ordering and conducting the tests.

Sentencing Guidelines

The consequences of alcohol related driving offenses can vary according to the level of intoxication but also depending upon the driver’s record. If the offense is a repeat offense, fines and surcharges will be higher and the offense may carry heavier penalties such as extended jail time and/or extended probationary periods.

A person is guilty of DWAI if he/she operates a motor vehicle while his/her ability to do so is impaired to any extent by the consumption of alcohol. DWAI is a traffic infraction – not a crime. By contrast. DWI, DWAI Drugs and DWAI Combined Influence are crimes.

It may be possible for a person charged with DWI for the first time to receive a plea bargain offer reducing the charge to DWAI, however, it is by no means assured. Many District Attorney’s Offices will not offer a reduction to DWAI if the person had a BAC over a certain level (e.g., .13%). They will not offer a reduction If the person refused to take a Breathalyzer test or s blood test, if there was an accident, if there was a child in the car, if the person was obnoxious to the police, or if the person resisted arrest.

If you are convicted of the following offenses, you face the following potential consequences:

First DWAI Offense

  1. A fine of between $300 and $500, up to 15 days in jail, or both;
  2. Suspension of your driver’s license for 90 days (unless you are under 21 or possess a “CDL”);
  3. A surcharge of $255 ($260 if the case is in either a Town or a Village Court);
  4. A driver responsibility assessment of $250 a year for 3 years; and
  5. A requirement that you attend a Victim Impact Panel.
  6. You will most likely be eligible for the Drinking Driver Program and a conditional license.

Second DWAI Offense

If you are convicted of DWAI after having been convicted of DWAI, DWI, Aggravated DWI, DWAI Drugs of DWAI Combined Influence within 5 years from the date of the prior conviction to the date of the present charge, you face the following potential consequences:

  1. A fine of between $500 and $750, up to 30 days in jail or both;
  2. Revocation of your driver’s license for at least 6 months. In addition, DMV will require evidence of alcohol evaluation and/or rehabilitation before it will ever relicense you;
  3. Discretionary revocation of your registration for at least 6 months;
  4. A surcharge of $255 ($260 if the case is in either a Town or a Village Court)’
  5. A driver responsibility assessment of $250 a year for 3 years; and
  6. A requirement that you attend a Victim Impact Panel.
  7. You will not be eligible for a conditional license.

Third and Subsequent DWAI Offenses

If you are charged with DWAI after having been convicted of 2 more violations of DWAI, DWI, Aggravated DWI, DWAI Drugs or DWAI Combined Influence within the past 10 years, you can be charged with misdemeanor DWAI, in which case you face the following potential consequences:

  1. A fine of between $750 and $1,500, up to 180 days in jail, or both;
  2. A period of probation of 3 years;
  3. Revocation of your driver’s license for at least 18 months. In addition, DWV will require evidence of alcohol rehabilitation before it will ever relicense you;
  4. Discretionary revocation of your registration for at least 6 months;
  5. A surcharge of $395 ($400 if the case is in either a Town or a Village Court);
  6. A driver responsibility assessment of $250 a year for 3 years; and
  7. A requirement that you attend a Victim Impact Panel.
  8. You may be eligible for the Drinking Driver Program, but will not be eligible for a conditional license.

Even if the DWAI is not elevated to a misdemeanor, your driver’s license will still be revoked for at least 18 months, because once you have 3 or more VTL§ 1192 convictions within to years, DMV imposes a license revocation of 6 months per offense. Thus, 4 offenses within 10 years would result in a 24-month license revocation, etc. You will also be subject to increased license penalties if the offenses are committed within a short period of time (e.g., 3 convictions within 4 years, or 4 convictions within 8 years).

First DWI Offense

DWI is a misdemeanor, conviction of which will result in a criminal record. If you are convicted of DWI as a first offense, you face the following potential consequences:

  1. A fine of between $500 and $1,000, up to 1 year in jail, or both;
  2. A period of probation of 3 years;
  3. Revocation of your driver’s license for at least 6 months;
  4. Discretionary revocation of your registration for at least 6 months;
  5. A surcharge of $395 ($400 if the case is in either a Town or a Village Court);
  6. A driver responsibility assessment of $250 a year for 3 years; and
  7. A requirement that you attend a Victim Impact Panel.
  8. You may be eligible for the Drinking Driver Program and a conditional license.

Second DWI Offense

If you are charged with DWI within 10 years of having been convicted of either DWI, Aggravated DWI, DWAI Drugs, or DWAI Combined Influence, you can be charged with felony DWI. Nonetheless, if you are allowed to plead to misdemeanor DWI, you face the following potential consequences:

  1. A fine of between $500 and $1,000, up to 1 year in jail, or both;
  2. A period of probation of 3 years;
  3. Revocation of your driver’s license for at least 1 year (at least 18 months where the prior conviction was for Aggravated DWI). In addition, DMV will require evidence of alcohol evaluation and/or rehabilitation before it will ever relicense you;
  4. Discretionary revocation of your registration for at least 1 year;
  5. A surcharge of $395 ($400 if the case is in either a Town or a Village Court);
  6. A driver responsibility assessment of $250 a year for 3 years; and
  7. A requirement that you attend a Victim Impact Panel.

If you are convicted of misdemeanor DWI after having been convicted of misdemeanor DWI within the past 5 years, you are subject to the following additional mandatory penalties:

5 days in jail or 30 days of community service;
You must install an ignition interlock device in each motor vehicle you own or operate; and
You must receive an alcohol or substance abuse assessment, which may result in the imposition of treatment as a condition of a sentence of probation or conditional discharge.
If the new DWI charge is more than 5 years from your prior conviction, you may be eligible for a conditional license.

Aggravated DWI – First Offense

Aggravated DWI is a misdemeanor. If you are convicted of Aggravated DWI as a first offense, you face the following potential consequences:

  1. A fine of between $1,000 and $2,500, up to 1 year in jail, or both;
  2. A period of probation of 3 years;
  3. Revocation of your driver’s license for at least 1 year;
  4. Discretionary revocation of your registration for at least 1 year;
  5. A surcharge of $395 ($400 if the case is in either a Town or a Village Court);
  6. A driver responsibility assessment of $250 a year for 3 years; and
  7. A requirement that you attend a Victim Impact Panel.
  8. You may be eligible for the Drinking Driver Program and a conditional license.
  9. If you are convicted of Aggravated DWI and sentenced to probation, the Court is required to order you to install an ignition interlock device in any vehicle you own or operate.

Aggravated DWI – Second Offense

If you are charged with Aggravated DWI within 10 years of having been convicted of either DWI, Aggravated DWI, DWAI Drugs, or DWAI Combined Influence, you can be charged with felony Aggravated DWI. Nonetheless, if you are allowed to plead to misdemeanor Aggravated DWI, you face the following consequences:

  1. A fine of between $1,000 and $2,500, up to 1 year in jail, or both;
  2. A period of probation of 3 years;
  3. Revocation of your driver’s license for at least 18 months;
  4. Discretionary revocation of your registration for at least 18 months;
  5. A surcharge of $395 ($400 if the case in either a Town or a Village Court);
  6. A driver responsibility assessment of $250 a year for 3 years; and
  7. A requirement that you attend a Victim Impact Panel.
  8. If you are convicted of Aggravated DWI and sentenced to probation, the Court is required to order you to install an ignition interlock device in any vehicle you own or operate.

DWAI Drugs

Like DWI, DWAIs Drugs is a crime, conviction of which will result in a lifetime criminal record. It is critical to note that the standard of proof for DWAI Drugs is the same as that for DWAI Alcohol (that is, a person is guilty of DWAI Drugs if he/she operates a motor vehicle while his/her ability to do so is Impaired to any extent by any consumption of certain drugs). In other words, DWAI Drugs is the same level offense as DWI, but you only need to be impaired – not intoxicated – to be convicted of this offense.

The consequences of DWAI Drugs are virtually identical to those of DWI, with a critical exception. Due to a glitch in the law, if you are convicted of DWAI Drugs you are not eligible for a conditional license, but you may eligible for a restricted use license (which is very similar to a conditional license).

DWAI Combined Influence

The crime of Driving While Ability Impaired by the Combined Influence of Drugs or of Alcohol and any Drug or Drugs is self-explanatory. The consequences of a conviction of this offense are virtually identical to those of DWI.

Consent and Refusal to Perform Tests

While a person is not required to perform field sobriety tests, such as the walk and turn and horizontal gaze nystagmus, every driver in the State of New York is required to sub it to a breath-screening test, such as the Alco-Sensor.

In New York, there are two primary consequences of refusing to submit to a chemical test:

  1. The refusal generally can be used against you at trial as consciousness of guilt evidence.
  2. The refusal is itself a civil violation, wholly independent of the DWI charge in criminal court, which results in proceedings before a DMV Administrative Law judge, and generally in both (a) a significant drivers license revocation, and (b) a civil penalty (ie, a fine)

Civil Sanction for Chemical Test Refusal – First Offense

A Chemical test refusal is considered to be a first offense if, within the past 5 years, you have neither (a) had your driving privileges revoked, for refusing to submit to a chemical test, nor (b) been convicted of DWAI, DWI, Aggravated DWI, DWAI Drugs, DWAI combined influence (not arising out of the same incident ).

The civil sanction for refusing to submit to a chemical test as a first offense are:

  1. Revocation of your driver’s license for 1 year (18 months if you have a CDL):
  2. A Civil penalty of $ 500: and
  3. A driver responsibility assessment of $250 a year for 3 years (unless such assessment is already being paid based upon a DWAI, DWI, Aggravated DWI, DWAI Drugs or DWAI combined influence conviction arising out the same incident).

Civil Sanction for Chemical Test Refusal – Repeat Offenders

A chemical test refusal is considered to be a repeat offense if, within the past 5 years, you have either (a) had your driving privileges revoked for refusing to submit to a chemical test, or (b) been convicted of DWAI, DWI , Aggravated DWI, DWAI Drugs, DWAI combined influence or zero Tolerance (not arising out of the same incident).

  1. The Civil Sanctions for refusing to submit to a chemical test as a repeat offender are:
  2. Revocation of your drivers’s license for 18 months (at least 10 years if you have a CDL);
  3. A Civil penalty of $750 (unless the predicate was a violation of the zero Tolerance Law, in which case the civil penalty is $500); and
  4. A driver responsibility assessment of $250 a year for 3 years (unless such assessment is already being paid based upon a DWAI, DWI, Aggravated DWI, DWAI Drugs or DWAI combined influence conviction arising out the same incident).
  5. In addition, DMV will require evidence of alcohol and/or rehabilitation before it will ever relicense you.

Civil Sanction for Chemical Test Refusal – Underage Offenders

If you under 21 and are found to have refused to submit to chemical test as a first offense, your driver’s license will be revoked for 1 year.

If you have a prior refusal or a conviction of DWAI, DWI, Aggravated DWI, DWAI Drugs, DWAI combined influence or zero Tolerance, your driver’s license will be revoked for at least 1 year or until you turn 21, whichever is longer.

Chemical Test Refusal Revocation Runs Separate and Apart From suspension /Revocation for DWI/DWAI

The license revocation for a chemical test refusal is a civil penalty separate and district from the license suspension/revocation, which results from a conviction in criminal court. As such, the suspension/revocation periods run separate and apart from each other to the extent that they do not overlap.

Should you Refuse to submit to a chemical Test?

There is so simple answer (or even necessarily a correct answers) to the question of whether you should submit to a chemical test in a given situation-a question which usually arises in the middle of the night! The answer depends upon many factors, such as:

  1. Whether there has been accident involving serious physical injury or death,
  2. Whether the DWI charge is a felony,
  3. Whether you are a repeat/multiple offender,
  4. Whether you need to drive to earn a living, and
  5. Whether the test result is likely to be above the legal limit.

As a general rule (although it does differ on a case to case basis), Eisner Picarello PLLC. has the opinion that a chemical test should be refused in situations involving serious physical injury or death, or where the DWI charge is a felony. In almost every other circumstance, you should consent to the test.

DMV Refusal Hearing

If you refuse to submit to a chemical test, you have the right to a due process hearing before a DMV Administrative Law judge. Although the odds are certainly against you at the hearing, such hearings are definitely winnable, and may also provide critical information with regard to your DWI case in criminal court (if the case is still pending)

Collateral Consequences of a DWI/DWAI Conviction

Suspension and/or revocation of a driver’s license is required upon conviction for a drug and alcohol related driving offense. When a license is suspended, the suspension is for a specified time period. Once the time period is competed and the fees have been paid, including the suspension lift fee, the license will be automatically reinstated. Suspension occurs immediately at arraignment in cases where a person is charged with a DWI and alleged to have a blood alcohol level of .08 or more.

A license revocation is an entirely different matter. A license will be revoked for a minimum time period, which ends only upon reapplication to the DMV and proof of completion of a drug or alcohol treatment program. The license, however, is not automatically reinstated. The license may be denied, for example, on the basis of the person’s driving record. The decision of whether or not to reinstate a license lies solely within the discretion of the DMV.

When a person is convicted of a drug or alcohol related driving offense, the court has the option to compel the installation of an ignition interlock device. When a person has been convicted one or more times within five years, the court must order the installation of the device. The ignition interlock system is a breath tester that is used to prevent the ignition of the car when alcohol is detected. The driver must breathe into the device before starting the car, as well as at random periods after ignition.

Driver responsibility assessment fees are required of any person who is convicted of an alcohol or drug related offense, or is found to have refused to take a chemical test. This is in addition to fees, penalties, and surcharges. The failure to make such payments will result in another suspension of the person’s license.

Mandatory surcharges will be imposed in addition to fines, varying according to the charge and where the case is located. Surcharges in DWI/DWAI cases can add up to several hundred dollars.

Lastly, if a person is found to be driving with a suspended or revoked license, is arrested, and is found to be intoxicated, he or she will be subject to a mandatory fine of $5,000, possible vehicle forfeiture, and potentially charged with a Felony offense for driving with a suspended or revoked license (even if the DWI is only a misdemeanor).

Conditional Licenses

When a person’s license has been taken away, there is an option to participate in the Drinking Driver Program (DDP), which may allow drivers to obtain a conditional license allowing them to drive on a limited basis during their suspension/revocation period.

An individual charged with an alcohol or drug related offense might be eligible for a conditional license while the charge is pending if the individual meets certain requirements and criteria. There are two types of conditional licenses an individual may apply for after being charged with an alcohol or drug related driving offense.

While a conviction is pending, an individual may be eligible for a pre-conviction conditional license.
After an individual is convicted, he or she may still apply for a post-conviction conditional license.

A conditional license allows you to drive:

  1. To and from and during work;
  2. To and from the Drinking Driver Program and any related alcohol/drug treatment;
  3. To and from school;
  4. To and from probation;
  5. To and from DMV;
  6. To and from medical treatment;
  7. To and from your child’s school or day care provider; and
  8. For one 3-hour time period per week to run errands

An automatic disqualification for the DDP occurs if an applicant has participated in a DDP program within the five years prior to the present offense.

For a comprehensive list of Drug and Alcohol related Traffic Offenses and Penalties Click Here

To speak with one of our attorneys about your DWI/DWAI case, Contact us now for a free consultation