Perhaps you were having a few drinks with friends and as you left the parking lot, you were stopped by the police. Chances are the Police were observing the restaurant/bar and simply waited until someone, unfortunately you, drove away. In the police's mind you were already presumed guilty. You think you passed those standard field sobriety test, you know, walk the line, finger to nose and one leg stand, but next thing you know you are chained to the wall and peppered with questions and introduced to someone wearing a white lab coat who repeats the sobriety tests and has you blow into a straw.
The outcome of which will effect you for years to come. No other accusation in the criminal law will have as far reaching consequences as DWI-drunk driving. Not only do you face criminal prosecution, and loss of your driving privileges while the case is pending, and imprisonment, probation, fines and also possible seizure of your car, but mandatory license suspension/revocation, imposition of court and DMV mandated alcohol rehabilitation programs, drug/alcohol evaluation and testing and often court ordered abstinence,.
Moreover, if there was a car crash involved, your own insurance company will not pay for your own medical care nor damages to you own car and you risk being sued individually any for injuries suffered by others.
Additionally, should you get your license back your insurance premiums will be increase 35 % and you are placed in the assigned risk pool because most insures will drop you as an insured.
Despite the far reaching consequences of a "simple" first time DWI, it still amazes me that most of those accused have a caviler attitude. This "is no big deal" attitude is fostered, unfortunately, by those attorneys whom probably share in their client's ignorance of the complexities and far reaching consequences of a DWI charge.
Gone are the days when drunk driving was viewed as a comical nuisance. No longer do the police simply drive the person home. Today, law enforcement spends considerable resources on detecting DWI. Last year for example Nassau County made over 6,500 DWI arrests, and Suffolk DWI arrests exceed 8,000 and both counties have created special task forces to combat DWI including specially trained police and prosecutors.
Law are pending to make it easier to arrest one for DWI and it seems that almost each year the penalties increase.
Despite the get tough approach towards DWI and the increased penalties and likelihood of jail and mandatory loss of license, a skilled and experienced criminal defense attorney should be able to uncover factual, legal and evidentiary defenses which can lessen the impact of the arrest and potential conviction, and in some instances have the charges dismissed or reduced before trial.
Top 10 DWI Misconceptions:
- 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 head lights at night, you failed to proceed after the traffic light turned green. If the police can not 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.
- It's a crime to drink and drive. It is not a crime to drink and drive. The crime of DWI requires operating a car while you have .08 alcohol to blood percentage. Blood alcohol content 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-.07.
- If there is no breathalyser reading, you can't be guilty of DWI. Even if there is no alcohol reading, sometimes referred as a "refusal" one can still be guilty of the crime of DWI. This is called common law intoxication and the case is proven based on police's observations of your physical condition and overall coordination and vehicle operation.
- 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 breath test and the Field Sobriety Performance tests. If you refuse, however, you can not 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 criminal charges.
- If you are taking prescribed medication you can't be convicted of DWI by drugs. A related but different crime is operation of a vehicle while impaired by drugs. This crime only requires that your ability to operate the car is impaired not intoxicated 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.
- You will not lose your drivers license until the conclusion of the criminal case so its 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 and it will allow you to drive to and from work while the case is pending.
- The breathalyser is infallible and its test results are always accurate. Of course not, the breath machine which is 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, operated before its results will be considered accurate.
- If I was not driving the car I can't be guilty of DWI. 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. Driving is not required for you to be found guilty, only being intoxicated with .10 % or more of blood alcohol and operation. It means being in the car with the ready capacity to drive it.
- You should only drink after a big meal. Whether you drink on a full or empty stomach will not effect the amount of alcohol released into the blood stream and then lungs and brain. It will effect, 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 drank the alcohol will not be released until the food is first digested and liquefied. Therefore, the amount of food will not effect the eventual level of alcohol in the blood but will effect when the alcohol is released into the blood stream.
- 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; hence custodial interrogation.. So, after the police stop you in a car and ask you if you had been drinking, the Court's have ruled that no Warnings are required because you have not yet been arrested and placed into custody. But after arrest, if the police question you about the drinking and driving, the Rights need be read to you and you must waive or give them up.
© Copyright 1998, 2005 Karl C. Seman, Grunwald & Seman, PC
