Driving While Intoxicated is a Crime in
New York that creates a number of issues and difficulties for people
who are accused. Driving While Intoxicated, or DWI cases in New
York can range in seriousness and complexity from something that can
be dealt with in relatively short order without significant
inconvenience to full blown felony charges carrying potential long
term state prison sentences. Trials of Driving While Intoxicated
cases can, under some circumstances, be among the most specialized and
complex, expert driven trials or a comparatively far simpler trial
essentially boiling down to a determination of who was driving the car
in question.
In order to know where your New York
Driving While Intoxicated case fits in the grand scheme of driving
while intoxicated cases, you ought to consult a
new york criminal
defense lawyer with experience in the area of driving while
intoxicated cases.
Driving While Intoxicated Cases Have
Many Implications Beyond the Criminal Case
In the New York Metropolitan Area,
Driving While Intoxicated Cases create a number of other problems,
some of which can require retaining counsel separately from the
criminal case itself.
For example, if you are arrested for
Driving While Intoxicated in New York City or Nassau County or
Westchester or Putnam County you could face the following additional
problems:
1. Refusal Hearing
If the police claim that you refused
to take a breath or blood test, then the Department of Motor
Vehicles will be holding a hearing SEPARATE AND INDEPENDENT FROM THE
CRIMINAL CASE that could result in your license being revoked for
six months. Although the burden is low and the defenses are
limited, it is possible to win these hearings. Furthermore,
they do offer an opportunity on occasion to cross-examine the
arresting officer and obtain some critical paperwork in the case.
2. Car Forfeiture
The police departments may seek to
forfeit the car they claim was used for the driving while
intoxicated. Forfeiture is another SEPARATE AND INDEPENDENT
court proceeding in which the police department is allowed to sue
you and, if successful, keep your car. Forfeiture actions are
not brought by the District Attorney's Office. They are
brought by the Police Department itself. The outcome of the
criminal case is totally irrelevant to the forfeiture action by the
police. In other words, you could win your driving while
intoxicated case at trial in New York, and the police could still
sue you for your car AND WIN. The forfeiture lawsuit is a
civil lawsuit subject only to the relatively small burden of proof
of preponderance of evidence. A victory in criminal court
merely means that the Government did not meet the burden of beyond a
reasonable doubt. Forfeiture actions are real lawsuits in
which you will have to decide whether you will hire a lawyer to
defend the suit.
3. Insurance Premiums
A plea or conviction to a driving
while intoxicated related offense could result in an increase in
insurance premiums.
4. Suspension of License
Pending Prosecution
In some circumstances, simply being
accused of driving while intoxicated can result in the suspension of
your license even before you have been convicted of anything.
Since our courts have decided that having your license suspended is
not a punishment, it has been held that suspension of your license
before you have been convicted does not run afoul of the presumption
of innocence.5. License Suspension or Revocation on Conviction
A plea or conviction to a driving
while intoxicated related offense will result in difficulties with
your license to drive in New York that could range for a relatively
brief suspension to a lengthy revocation.
6. Enhanced Sentencing in
Future
A plea or conviction to a driving
while intoxicated related offense will create a situation that could
enhance the potential problems you would face if you were arrested
for driving while intoxicated again.
Different Versions of Driving While
Intoxicated in New York
Driving While Intoxicated comes in different forms in New York, "common-law" and
statutory.
Common-Law Driving
While Intoxicated
Common-law driving while intoxicated in
New York allows you to be accused of driving while intoxicated even
though there is no scientific test about your blood alcohol level.
According to the law, whether or not a person is intoxicated is the
sort of thing that nearly anyone can give an opinion about without
being an expert. It is the sort of thing that the law says
nearly everyone is an "expert" in. That means that you could be
convicted of driving while intoxicated by the testimony of a police
officer who simply said that in his opinion you were intoxicated.
Of course at such a trial, your lawyer would have an opportunity to
challenge the assumption of the police officer and point out the
possibility of the alternative assumption that you were not
intoxicated.
Statutory Driving While
Intoxicated
Statutory driving while intoxicated in
New York permits you to be accused of driving while intoxicated with
scientific proof of intoxication based on the level of alcohol present
in your blood. Under current New York State law, the point at
which you are intoxicated is when your blood alcohol level is .08
percent or above. Proof of this blood alcohol level can be
accomplished by evidence of any one of a variety of tests a person
accused of driving while intoxicated can be asked to take after
arrest. The most common test in New York is a Breath Testing
that, according to its proponents, analyzes your breath and
converts the results to blood alcohol level. These machines (and
there a few different versions of them) all make certain assumptions about the way people absorb alcohol into their systems.
These assumptions are subject to dispute and there are a variety of
means to attack the results of these machines. Attacking the
results of the machines, however, usually means hiring one or more
expert witnesses. Frequently people accused of driving while
intoxicated are unwilling or unable to obtain an expert. Expert
witnesses to attack the breath machine's results are frequently
employed in more serious driving while intoxicated cases, like for
example felony driving while intoxicated cases.
The Government prefers to use the statutory
form of driving while intoxicated because they like being able to
produce scientific evidence of the intoxication as opposed to relying
on police statements that the accused had "bloodshot watery eyes,
slurred speech and was unsteady on his feet." There are
occasions, however, when for any number of reasons, the actual
scientific result is not permitted to be used, and the only thing left
is the common law case. From the defense perspective, a common
law case is probably a better case to take to trial because it is
easier to challenge the assumptions of a police officer than it is to
challenge the printout of a machine.
