Driving (Operating) While Intoxicated or Impaired by Drugs or Alcohol

WHAT WE DO

Whether it's called DWI, DUI, Driving While Intoxicated or Driving While Impaired every case involving operation of a motor vehicle is unique, and each has its own facts. In order to thoroughly defend each Client, in every case we:

• Carefully review police reports for errors, omissions and inaccuracies
  
  

• Examine all  issues surrounding the police decision to arrest you. Was stopping you lawful? Was the detention lawful? Was there probable cause to arrest you?
   

• Assess the seizure of you vehicle - Have the police and the District Attorney's office acted in strict compliance with the law or can you do something to get your car back. More information about Nassau County vehicle forfeiture is available here.
  
  

• Determine if the chemical test was properly administered in compliance with New York law; Subpoena the maintenance and calibration records of breath test machines used in your case
  
  

• Subpoena the officer's training records to ensure he or she has been properly trained in the use of the breath test machine
  
  

• Obtain an independent Lab test of any blood sample to be sure the test result provided by the police is accurate, that the sample is properly preserved, and that it has not been contaminated
  
  

• Fully advise you as to all issues listed above, and determine if a trial or negotiated settlement makes most sense in your case
  
  

• Fully advise you of the steps you can take to present yourself in the most positive light possible to the Court and the Probation Department

DWI is a serious criminal charge, and we recommend that no one represent themselves in such a matter. Should you decide against retaining our services for your drunk driving matter, we still strongly suggest you seek legal counsel experienced in criminal defense for advice.

Under New York State Law, a person is presumed to be intoxicated by alcohol if their blood alcohol test (breath or blood) shows a Blood Alcohol Content (BAC) of .08 of one percent or greater. New York also recognizes "Common Law" intoxication, determined by the arresting officer but subject to attack in Court, where an individual refuses to submit to chemical testing. You are presumptively impaired by alcohol if your BAC exceeded .05 of one percent. Impairment by drugs is similar to impairment by alcohol in that the Police will testify about how you and your actions appeared to them coupled with a chemical test containing a finding that certain drugs were in your system at the time of your arrest.   

Proving a DWI/Impaired case may appear to you not to be a difficult one for the prosecuting attorney. Not true. A prosecuting attorney must prove (1) you were operating a motor vehicle, and (2) your blood alcohol level was at .08% (10% for arrests prior to July 1, 2003) or greater, or, (3) that you were impaired. by alcohol or drugs. Remember, they must prove you guilty beyond a reasonable doubt. Their machines aren't perfect. They aren't perfect. The science the machines utilize is flawed. Certain medical conditions can result in false high readings. Certain drugs remain in your system for as long as a month after they are ingested (long after any impairment resulting from their use has disappeared).  Police Officers are human. Many cases should be plea bargained and many are appropriate for trial. We will help you assess all of your options. 

YOUR DRIVING PRIVILEGES

The Court and the will automatically suspend or revoke your license, pending prosecution (until your case is resolved),  if they have evidence you were driving with a blood alcohol content of .08 or higher.  It is possible that you can have your license immediately restored if you prevail at a Hardship Hearing. You can get a Conditional License after 30 days of Suspension Pending Prosecution. 

A conditional license, pre or post conviction, may be used:

1.        To, 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  the Department of Motor Vehicles;

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.

Your license will also be taken if you've been convicted of an alcohol/drug driving offense within the preceding five years, or if you are charged with vehicular assault or manslaughter stemming from your DWI arrest, but no hardship or conditional license will be available.

Under certain circumstances the Judge may suspend you driving privileges as a matter of discretion. This discretion is sometimes applied in a manner not permitted by statute and/or case law and you should discuss with counsel if you license has been properly taken from you.

If it is claimed that you refused a chemical test your license will be taken at your arraignment You are entitled to a hearing before the Department of Motor Vehicles (DMV) to determine if you did actually refuse.  The DMV proceeding is separate and apart from the Court proceeding. Our office provides complete representation at all DMV proceedings and will aggressively seek to protect your driver's license. 

In certain counties your vehicle may be seized in connection with your arrest. Your attorney will advise what steps may be taken to seek the return of your vehicle. 

If your license is revoked there is a $50 re-application fee  (unless you took a NYS Alcohol and Drug Rehabilitation Program). This fee is in addition to Court fines and is not refunded if your application is denied.

Your Drinking Driver Program will cost you $175.00 and your Conditional License will cost another $75.00.

All this can be somewhat meaningless as your insurance carrier may cancel or refuse to renew your insurance policy due to your conviction

Under New York's Zero Tolerance Law if you are under the age of twenty-one and are caught driving with a blood alcohol content of just .02 (one drink!) you  face a mandatory period of suspension. You are entitled to a hearing to determine if you did operate the vehicle with .02 or more.

You also  will be fined $125.00 for the first offense and your drivers license will be suspended for  6 months (you may, however, obtain a conditional license by completing the NYS Drinking Driver Program - at least 7 weeks of classes). If you have previously been convicted of an alcohol related driving offense you will lose your license for one year or until age 21 if longer.  

Unlike convictions for those over the age of 21, when you reach the age of  21  the suspension  will be removed from your driving record. 

A lesser charge that the police may charge you with (or to which you may be able to pleas bargain and plead) is Driving With Ability Impaired (by alcohol). This is a Violation and not a Crime and the penalties and consequences are less severe.