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Top Ten Misconceptions about DWI / DUI
Long Island DUI/DWI Attorneys: Nassau • Suffolk • New York City
The drunk driving attorneys of Grunwald & Seman, P.C. can educate you about drunk driving laws and your rights, and provide the aggressive defense you need for the harsh potential consequences. Call 800-399-7098 immediately for a free consultation. We are accessible 24 hours a day, 7 days a week.
Below are common myths about DWI/DUI and the truths you need to know.
(1) The police can randomly stop my car to see if I have been driving under the influence. The police must have a reasonable suspicion to compel a driver to stop and pull over. It can't be a hunch, a feeling or gut reaction by the police. It must be a reasoned suspicion such as weaving from lane to lane, no headlights at night, or failure to proceed after the traffic light turned green. If the police cannot demonstrate a good reason to stop you, the court can rule the stop was a pretense and any evidence and resulting arrest will be thrown out of court and the charges could be dismissed.
(2) It is a crime to drink and drive. It is not a crime to drink and drive. The crime of DWI/DUI requires operating a car while you have .08 alcohol to blood percentage. Blood alcohol content (BAC) of less than .08 is not a crime but can be a traffic infraction of DWAI, driving while ability impaired if the blood alcohol content is between .05 and .07.
(3) If there is no breathalyzer reading, you can't be guilty of DWI/DUI. Even if there is no alcohol reading, sometimes referred as a "refusal," one can still be guilty of the crime of DWI/DUI. This is called common law intoxication and the case is proven based on police observations of your physical condition and overall coordination and vehicle operation.
(4) You must take the breath test and cooperate with the police. Upon the issuance of a NYS driver's license, you are deemed to have consented to take a breath test and the Field Sobriety Performance tests. If you refuse, however, you cannot be forced to take the tests. Rather, you will be required to attend a chemical test refusal hearing at the local DMV office and face license revocation for a minimum of six months, even if you are found not guilty of DWI/DUI criminal charges.
(5) If you are taking prescribed medication you can't be convicted of DWI/DUI by drugs. A related but different crime is operation of a vehicle while impaired by drugs. This law does not require that you were intoxicated, only that your ability to operate the car is impaired and it was caused by some drug. The drug does not have to be illegal; you can be convicted even if the drug was lawfully prescribed by your doctor.
(6) You will not lose your drivers license until the conclusion of the criminal case, so it's best to delay the case for as long as possible. Quite the contrary. Most likely, the moment you go before the judge the court will order you not to drive. This is called a pre-conviction license suspension pending prosecution. You may not be able to lawfully drive until the case is completely concluded, or for the first 30 days. There are instances, however, when a conditional pre-conviction license will be issued, allowing you to drive to and from work while the case is pending
(7) The breathalyzer or the blood test results are infallible and its test results are always accurate. Of course not. The breath machine, often referred to as to as an intoxilyzer, is nothing more or less than a machine which attempts to calculate the percentage of alcohol in your blood by using a sample of your breath. The machine must be properly maintained, calibrated, and operated before its results can be considered accurate.
(8) If I was not driving the car I can't be guilty of DWI/DUI. Even if you are not driving the car, but asleep in the car you with the heater or A/C on you can still be convicted of DWI/DUI. Driving is not required for you to be found guilty, only being intoxicated with .08 % or more of blood alcohol and operation. It means being in the car with the ready capacity to drive it.
(9) You should only drink after a big meal. Whether you drink on a full or empty stomach will not affect the amount of alcohol released into the blood stream and then lungs and brain. It will affect, however, when the alcohol is released into the body. The alcohol in an intoxicating beverage will only be released after it goes through the body and is held in the stomach. The stomach's job is to reduce all food into a liquid form and only then allow the liquefied food contents to be released into the blood stream and eventually the lungs and brain. Therefore, if you drink on an empty stomach the alcohol will be quickly released from the stomach to the blood stream. Alternatively, if you have recently eaten and drunk, the alcohol will not be released until the food is first digested and liquefied. Therefore, the amount of food will not affect the eventual level of alcohol in the blood but will affect when the alcohol is released into the blood stream.
(10) If the Police did not read me the Miranda Warnings, the case will be dismissed. No. The so-called Miranda warnings only apply for custodial interrogation. The Right to Remain Silent, etc. must only be read if you are in police custody, and the police question you with the intention of getting you to confess (custodial interrogation). So, after the police stop you in a car and ask you if you had been drinking, the courts have ruled that no Warnings are required because you have not yet been arrested and placed into custody. After arrest, if the police question you about the drinking and driving, they must read you your rights, and you must waive those rights before interrogation can continue.
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