New York Criminal Defense Attorney Blog
The rules governing driving while intoxicated (“drunk driving”) in the State of New York are contained in the Vehicle and Traffic Law, from sections 1192 through 1199. To be charged with DWI in New York, the operator of a motor vehicle must have a blood-alcohol concentration (BAC) at or above .08 percent in the person’s blood or urine. This is measured by chemical testing of the person’s blood, breath, urine or saliva. Frequently, when a driver is stopped for an alleged DWI violation, they are asked to perform a test, known as a “Field Sobriety Test”.
The Field Sobriety Test can include any of the following: Checking the person’s balance, (request to stand on one leg) coordination, requesting that he or she count forwards, and backwards, or recite the alphabet in the same fashion. Additionally, the police officer may ask the driver to take a simple breath test known as an “Alco-Sensor.” If the officer determines that the driver has failed the Field Sobriety Test, they are arrested and brought to the local precinct.
Importantly, the results of the hand held Alco-Sensor breath test are not admissible in Court. Thus, within 2 hours of arrival at the precinct, the driver will be asked to submit to a chemical test by either a breathalyser, or a sample of their blood or urine. It is in this stage of the process that the charges frequently become more serious. The officer will request that the driver submit to the breathalyzer. The driver will often state: “I already did that when I was arrested.”, not realizing that the Alco-Sensor is a not the same as a breathalyzer, and that they are now in the process of a “refusal.”
The refusal to take a breathalyzer, or submit blood or urine samples, has separate and additional consequences, leading to additional fines, the potential revocation of the driver’s license, and the requirement to appear for a “Refusal Hearing” before an administrative judge at the Department of Motor Vehicles. The refusal hearing must be held within 15 days of arraignment.
At the arraignment, the person will be required to surrender their driver’s license, pending the outcome of the criminal charges. The critical issues at the inception of the criminal case are twofold. A check is made to determine if the driver has a criminal background (commonly known as a “rap sheet”). Secondly, the results of any chemical test must be evaluated and exchanged with the lawyer representing the driver. Generally speaking, neither the rap sheet nor the chemical test results are available at the time of arraignment.
If the rap sheet comes back “clean” (no prior convictions for alcohol related offenses), and the findings of any chemical test show that the driver had a blood alcohol level of .08 or less, and there has been no serious injury or property damage, the charges are generally reduced to driving while ability impaired, or “DWAI.” This reduction in the charges is critical for several reasons. First, the DWAI is a violation, not a misdemeanor. Secondly, the fines are significantly less for a DWAI than a DWI. Third, the driver’s license is suspended for three months, rather than the 6 month revocation of the license for conviction of a DWI.
As long as the driver has not been convicted of another alcohol offense within the preceding 5 years, they are eligible for a “conditional license” as long as they immediately enter the drinking driver program, or “DDP.” A conditional license permits the operator of a motor vehicle to travel to and from their place of employment, emergency appointments such as doctor’s visits, school, and child care facilities.
If a refusal hearing results in a substantiation of these charges, then a suspended license is no longer an option, and the Department of Motor Vehicles will revoke the driver’s license. A recent change in New York law established that the penalty for a refusal is revocation of the license for 1 year, whereas under the old law the revocation was for six months. Additionally, there will be a $250.00 fine assessed for three years as a result of the refusal, known as a driver assessment. However, as long as there was no prior alcohol conviction in the last five years, the driver is still eligible for the conditional license.
Another recent change in the law is the new charge of “Aggravated Driving While Intoxicated.” Under this new statute, any driver who is found to be operating a motor vehicle with a blood alcohol level of .18 or more will have their license revoked, and they will be held as charged on the DWI with no possibility of a reduction to a DWAI, even without a prior alcohol conviction.