NEW YORK STATE LAWYER
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DEFENSE LAWYER FIGHTING DWI, CRIMINAL CHARGES, SPEEDING TICKETS AND OTHER TRAFFIC OFFENSES IN NEW YORK SINCE 1990!
DWI stands for driving while intoxicated and basically means that a motorist is incapable of having the physical and mental abilities required to possess (or, impaired to a substantial extent) as a reasonable and prudent driver. Other states call it DUI or driving under the influence. I want to point out that a lesser degree of impairment in New York is a DWAI or driving while ability impaired. DWAI is a violation, not a crime like DWI is. The court of appeals, which is the highest court in New York, has defined a DWAI as a motorist’s physical or mental abilities actually being impaired (i.e., diminished or reduced) to any extent. DWAI is a lesser degree of impairment, hence, a violation only. A DWI is the next step up and is a misdemeanor crime. While a repeat DWI conviction within 10 years is a felony.
There are two paths to a conviction for a DWI - common law observations of intoxication and statutory intoxication. Statutory intoxication is the specific proscription that no person shall operate a motor vehicle while such person has a blood alcohol content (BAC) of 0.08% or more by weight of alcohol in their blood (technically, whether or not the individual was, in fact, intoxicated.) Almost DWI cases have both charges, except where there is a “refusal” to take the chemical breath test. In that instance, there is still the observations of intoxication serving as the basis for the single DWI allegation.
When someone is charged with DWI, they perform the chemical test, typically at the police station. It could also be a blood test or a urine test. If it comes back showing a 0.08 or a higher number, they're charged with DWI. Prior to them taking that chemical test, the police have already, in most cases, made their observations of common law intoxication. It's all part of the probable cause to arrest and it also culminates into a charge of DWI.
Common law intoxication means no person shall operate a motor vehicle while in an intoxicated condition. Typically, a motorist is pulled over for some alleged traffic violation. The officer will approach the vehicle, the motorist will roll down the window and the officer will stick his face close inside the window in order to make immediate observations of a number of factors; like whether or not there is an odor of alcohol. In virtually every DWI case, there's an odor of alcohol as one of the first direct observations of the motorist. That is usually followed by glassy eyes, slurred speech, flushed face, and fumbling for documentation.
Here, they are typically asked prior to being in custody (and, need not be “Mirandized” yet), if they had been drinking. In my experience, the vast majority of persons here say something to the effect of “yeah, I had a couple” of beers or wines. This is an admission and the trigger for them asking the motorist to step out of the car to perform some tests and ultimately a part of the probable cause for their arrest.
So, the motorist steps out of the car and the officer says that they want to administer some sobriety tests. These are the known nationally as the Standardized Field Sobriety Tests (“SFST”) designed to test the person’s coordination for the purpose of determining intoxication. In a nutshell, the sobriety tests will include the walk and turn; where you walk nine steps and turn a particular way that the officer will have demonstrated. Then, the one leg stand for 30 seconds. Note, under the best of circumstances; standing with your hands at your sides and keeping one leg raised for 30 seconds is a challenge. Lastly, the Horizontal Gaze Nystagmus test (“HGN”), where the officer asks you to keep your head straight and move only your eyes to follow a flashlight or a pen light up to 45 degrees to each side of the eye. If the eye demonstrates “Nystagmus,” or involuntary movement of the eye, it is an indicator of intoxication.
The police are making notations of any deviation from a perfect performance of the tests. For example, during the walk and turn, if you raise your arm to keep your balance, it's noted. If you step outside of the imaginary line, that's noted as well, and likely culminates in a fail of that particular test. In terms of accuracy - independently, these tests are not highly reliable even if properly administered. And, when combined, are only just above average (i.e., about a C+ / B- grade if they were a student project.)
At the scene, the officer will likely ask the driver to perform a preliminary breath test (“PBT”) or Alco-Sensor test, which is an alcohol detecting device. It is not as accurate as the chemical breath test device to be offered later at the police station – therefore, it is not generally admissible at trial. It can, however, be used as part of the probable cause package for an arrest. They will arrest the person, handcuff them, put them in the back of the car, and take them to the station. The defendant is processed, fingerprinted, and photographed. Most departments now use live scan, so they have access to the defendant’s arrest and conviction history within 20 minutes. They will also know if there are any outstanding warrants.
A chemical test will be performed by a certified trained operator. The device requires the motorist first to consent to submit to the test. If they don't, it's a refusal (which has its own negative consequences, such as, a one year revocation and adverse inference if matter goes to trial.) If they do take it but don’t follow instructions, it can also be construed as a refusal. The devices have what's known as a slope detector intended to rule out mouth alcohol – it’s supposed to be measuring deep lung air and not residual alcohol in one’s mouth. The device prints out the results and related information, including the start time of the mandatory 20 minute observation period. Under the public health law, the police are required to perform a 20 minute observation period of the defendant to make sure they are not burping, vomiting, etc., which could give them a highly inaccurate mouth alcohol content (even though the prosecution argue that doesn't factor into the breath test.) Typically, as a result of all of the foregoing documented observations and testing, the arresting police officer or trooper will issue the motorist two uniform traffic tickets for DWI and at least one more for traffic infraction they were pulled over for in the first instance. The tickets will indicate the date, time and location the now, defendant, is required to appear at court for their first appearance and arraignment.
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