How to Beat a New York DWI Charge

As in every state, there are different levels of DWI in New York. Each DWI-related charge carries with it significant consequences and penalties for a conviction, from fines to driver's licence suspensions to probation to incarceration.

Before we begin a discussion of what you can do to beat your DWI case in New York, it's important to take a look at the different levels of DWI-related offenses in New York and the associated penalties:

1. Driving While Ability Impaired (DWAI): The least serious offense in New York is DWAI. DWAI is a violation and not a misdemeanor. One is charged with DWAI in New York, when a device measuring Blood Alcohol Content (BAC) determines that the operator of a motor vehicle had a BAC of 0.05 or greater but less than 0.08. A conviction for DWAI carries a minimum fine of $300, a mandatory 90-day driver's licence suspension and up to 15 days in jail.
2. Driving While Intoxicated (DWI) - First Offense: A first-time DWI charge is a misdemeanor in New York. One is charged with DWI in New York when a BAC device measures a vehicle operator's BAC at 0.08 or greater but less than 0.18. A first-time conviction for DWI carries a minimum fine of $500, a mandatory license revocation of 6 months, and up to one (1) year in jail.
3. Driving While Intoxicated (DWI) - Second Offense: A driver who has been previously convicted of DWI within the past 10 years who is arrested for a subsequent DWI charge will be charged with felony DWI. A repeat DWI conviction carries a minimum fine of $1000, a mandatory 1 year driver's license revocation, and up to four (4) years in jail.
4. Aggravated Driving While Intoxicated (Aggravated DWI) - First Offense: If the BAC device measures the operator of a motor vehicle's blood alcohol content at .18 or greater, the driver will be charged with Aggravated DWI, which is a misdemeanor that carries more significant penalties than a non-aggravated DWI charge. A first-time Aggravated DWI conviction carries a minimum fine of $1000, a mandatory 1 year driver's license revocation and up to one (1) year in jail. Most prosecutors in New York will also seek a 3-year probation term for those convicted of aggravated DWI.

Many DWI cases are won or lost well before the decision to hire a lawyer is made because the defendant has waived many of his rights. Knowing and exercising one's legal rights is the first step to beating a DWI charge.

In this section, we shall briefly discuss the rights of every person charged with DWI.

1. The Right to Refuse to Partake in a Preliminary Breath Test (PBT): When DWI is suspected, the police officer will usually attempt to secure a driver's consent to partake in a PBT. Although the results of the PBT are not admissible in Court, they are admissible to prove that the police had probable cause to make a roadside arrest. In other words, without a PBT, the police must rely on your behavior and other circumstantial evidence to prove to the judge that probable cause existed. At a probable cause hearing, the lack of a PBT is often a gold mine for defense lawyers.
2. The Right to Refuse to Partake in Field Sobriety Tests: In addition to trying to obtain a PBT, most police officers will administer a Field Sobriety Test, consisting of three different tests designed to determine whether there is probable cause to arrest the driver for DWI. Unlike a PBT, a Field Sobriety Test result is admissible at trial to prove impairment. As anyone who has ever taken a Field Sobriety Test can tell you, these are difficult tests that are extremely subjective in nature. A sober person will often fail one or more of the field sobriety tests. As a result, there is very little reason for a person suspected of DWI to partake in a test intended to help the police secure a conviction. Additional information about the Standardized Field Sobriety Tests is available here.
3. The Right to Remain Silent: The Fifth Amendment of the United States Constitution guarantees a right to be free from self-incrimination. This right is often referred to as our Miranda right, based on a landmark case entitled Miranda v. Arizona. The law in New York, and every other state, is that the police must advise a person who has been arrested that he or she is legally entitled to remain silent and to refuse to answer any questions posed to him or her by the police. But even without this warning, any driver suspected of DWI is often well-served by not answering any questions from the police. In fact, police will often indicate that a driver has 'slurred speech' on a police report when DWI is suspected.
4. The Right to Refuse to take a Chemical Breath Test: After a driver is arrested for suspicion of a DWI-related offense, he or she is taken back to the police station where the police attempt to obtain more reliable results via a chemical breath test on a more sophisticated machine (i.e. Breathalyzer). The police are required to advise those arrested for DWI-related offenses that they have a right to refuse to take this test; however, a refusal to take this test will result in an automatic suspension of one's driver's license. Most lawyers will not give advice on whether to take the Chemical Breath Test because the correct advice depends on how intoxicated the driver may be. Unfortunately, most drivers suspected of DWI do not have the presence of mind to call their attorney while sitting in their vehicle and once arrested, the police will usually not allow the driver to call his or her attorney prior to making a decision about whether to take the chemical breath test. Ultimately, the chemical breath test is the single-most important factor in building a case for the police and district attorney, so most New York DWI lawyers make the following recommendations: If one has had very little alcohol (1-2 drinks) and some time has elapsed since the last drink was consumed, a chemical breath test is probably in the driver's best legal interests as it will tend to exonerate the driver. If one has consumed a large amount of alcohol in a relatively short period of time, taking a chemical breath test is probably not in the driver's best legal interests as it would tend to incriminate the driver.

New York DWI Lawyer Jason Stern has been quoted or appeared on Good Morning America, the New York Times, Wall Street Journal, Fox News, ABC, CNN, Headline News, BBC UK, US News and World Report and countless other publications, television and radio programs.

He has been practicing criminal defense in New York for more than 17 years and boasts an excellent rating on AVVO, an nationwide attorney-rating site. He is admitted to practice in New YorkState and Federal Court in the Eastern and Southern Districts of New York.

His collection of New York DWI lawyer websites includes Brooklyn DWI, Queens DWI, Bronx DWI, Westchester DWI, and Putnam DWI.

For a FREE telephone consultation, just mention HUBPAGES in the subject of your email to Jason Stern or call 212-920-6950.