New York State and City prosecutors take DUI (“Driving Under the Influence”) or DWI (“Driving While Intoxicated”) crimes seriously, and a conviction related to any of these offenses could have lasting effects on your driving privileges, insurance costs, and your license itself. Regardless of your own safety precautions and knowledge of how alcohol affects you, a car stop by police or an investigation at a road checkpoint can result in criminal charges fairly easily. The Linehan Law Firm can help you formulate a defense strategy to deal with these accusations.
A police officer may initiate a traffic stop based on ‘reasonable suspicion’ of impaired driving. This can be due to erratic driving patterns, speeding, or a traffic infraction – all of which the officer will have to corroborate. Following an initial traffic stop, an officer may then proceed with a DUI investigation if there’s any indication – such as the smell of alcohol, slurred speech, or impaired motor skills – to raise suspicion of intoxication. The key factors in determining the severity of DWI charges likes not only in the Blood Alcohol Level, but also the factual circumstances surrounding the stop and arrest, and the driver’s prior record.
There are a variety of misdemeanor and felony offenses related to DUI/DWI, and not all of them require that you “blow” over a certain blood/alcohol level. “Per Se” violations are proven by evidence of a driver’s Breathalyzer reading, and “Common Law” offenses are based upon a police officer’s observations, in the form of testimony.
DWI/DUI Testing
- Field Sobriety Tests: These primary assessments, notoriously subjective, often form the first line of law enforcement’s DUI detection strategy. They encompass three main exercises – the One-Leg Stand, the Walk and Turn, and the Horizontal Gaze Nystagmus. The One-Leg Stand test gauges balance, while the Walk and Turn evaluates motor control and attention levels. The Horizontal Gaze Nystagmus test tracks involuntary eye movement, commonly accelerated by alcohol.
- Chemical Tests: Designed to provide concrete evidence of intoxication, law enforcement may employ either breath, blood, or urine tests. Breath tests, often administered roadside, use a breathalyzer to calculate blood alcohol concentration (BAC). Blood tests, although invasively, provide an accurate measurement of a person’s current BAC. Urine tests, while less common, can detect substance usage from a longer window of time, but often lack the precision of blood and breath tests.
Common Charges
Vehicle and Traffic Law §1192.
This is a common charge, as it only requires law enforcement to prove, under subsection 1, that a “person’s ability to operate [a] motor vehicle is impaired by the consumption of alcohol.” This can be based upon observations by a police officer, drawing from their “training and experience,” in which they could allege that a driver has slurred speech, wavering balance, the smell of alcohol on their breath, etc. While this offense is generally a non-criminal violation, it can be elevated or “bumped up”” to a misdemeanor if the driver has multiple prior convictions for this offense.
Here’s a summary of VTL §1192’s key provisions:
- Driving While Ability Impaired (DWAI): Operating a vehicle while impaired by alcohol consumption, but not to the level of intoxication.
- Driving While Intoxicated (DWI): Usually a misdemeanor for first-time offenders.
- Per Se: Having a blood alcohol content (BAC) of 0.08% or higher.
- Common Law: Driving in an intoxicated condition, regardless of BAC.
- Aggravated Driving While Intoxicated (Aggravated DWI): This is a misdemeanor punishable by up to year in jail, and fines of up to $2500.
- Per Se: Having a BAC of 0.18% or higher.
- With a Child: Driving intoxicated with a passenger aged 15 or younger.
- Driving While Ability Impaired by Drugs: Operating a vehicle while impaired by the use of drugs.
- Driving While Ability Impaired by Combined Influence: Impairment caused by a combination of alcohol and drugs.
Vehicle and Traffic Law §511
“Aggravated Unlicensed Operation of a Motor Vehicle,” can be charged in several ways.
- Third Degree, under VTL §511(1): This is the least severe and is considered a misdemeanor. It applies when someone operates a motor vehicle while knowing, or having reason to know, that their license is suspended or revoked. Sentences can include fines between $200 to $500, and up to 30 days jail.
- Second Degree, under VTL §511(2) : This is also a misdemeanor but more serious than the third degree. It applies if the person commits the third-degree offense and:
- Has a prior conviction for the same offense within the last 18 months.
- The suspension or revocation is due to a refusal to take a chemical test or a conviction for driving under the influence.
- The person has three or more suspensions on separate dates for failing to answer, appear, or pay fines.
- The sentence for this crime can include fines between $500 and $1,000, up to a city year in jail, or a significant period of probation.
- First Degree, under VTL §511(3): This is the most severe and is classified as an E felony. It applies if the person commits the second-degree offense and (a) is driving under the influence of alcohol or drugs, or (b) has a prior conviction for aggravated unlicensed operation in the second degree. In addition to the possible fines outlined above, a person convicted of this subsection could face up to 2 years in state prison.