What can I expect when I am stopped by a law enforcement officer for suspicion of DWI?
When a driver is stopped by a police officer due to suspicion of driving under the influence of alcohol, they will undergo a series of investigatory measures to determine whether the driver is, in fact, intoxicated.
After you are stopped and questioned, you will be asked to perform Standardized Field Sobriety Tests or agility tests. There are three possible tests that you may be required to take. It is important to note that these tests are set up in a way that even if a person is not over the legal blood alcohol limit, they may still fail the test.
One of the Standardized Field Sobriety Tests is known as the Walk and Turn test. The possibly intoxicated driver will be asked to put his or her to walk in a straight line, heel to toe, counting out each step until you reach nine steps. Then, they will turn around and walk an additional nine steps back, heel to toe. Throughout the test, you not allowed to raise your arms, lose your balance, and you must stay on the “line.”
The second type of Field Sobriety Test is the One Leg Stand test. In this test, you must hold one foot up about 12 to 18 inches. You will tilt your toe towards your head and count to 30,000 by one one-thousands. You are not permitted to hop to regain balance, put your foot down on the ground or sway.
The steps in the One Leg Stand test include instruction and performance. In the instruction phase, the officer tells you how the test is supposed to be done and then will demonstrate an example of how a person who is not intoxicated can conduct the test. During the performance stage, you will attempt to follow the instructions as the officer demonstrated. If you can’t keep your balance during this test, this is an indication to law enforcement that you are intoxicated.
Finally, there is the Horizontal Gaze Nystagmus test. The officer will hold a pen about 12 inches from your face and move it horizontally, expecting our eyes to follow the pen. If your eyes jerked back and forth as they followed the pen, the officer may determine that there may be a level of intoxication. If your eyes without moving your head cannot equally track or equally follow the pen, that’s clue number two. The third clue is maximum deviation. That means when the pen requires your eye to go all the way to that side of your eye socket and it can’t stay there, and if it’s there and it jerks back and forth, it’s called maximum deviation nystagmus.
If you fail any of these sobriety tests, the officer has grounds to arrest you for driving under the influence of alcohol.
Defenses to Field Sobriety Tests
These field sobriety tests are not easy. They aren’t meant to be easy. Some people who aren’t actually intoxicated over the legal blood alcohol content limit may fail the tests and end up with a DWI arrest. An experienced attorney can assess the administration of the tests and look for some defenses that may help you in your case.
The Walk and Turn test relies on your balance to successfully complete the test. This particular test can be faulty if you are over 50-years-old, if you’re overweight, if you are wearing high heels, if the surface is not dry or level. If the test is administered under these conditions, it is invalid. In addition, the Walk and Turn test often is given on the street where there are a lot of cars passing by at a high rate of speed, which can cause distractions and negatively impact the outcome. Failed clues include stepping off the imaginary line, raising your arms to regain balance, losing your balance, not counting each step, and not keeping your feet heel-to-toe. The problem with the test is that it only has a 66 percent accuracy rate, according to the National Highway Traffic Safety Administration who is the organization that actually approves these field sobriety test.
If you feel as though the One Leg Stand test was not properly administered or was inaccurate about your level of intoxication. Some of those challenges that can be made if you feel that this is an unfair test for you to be performing because of extraneous circumstances include leg or back problems, obesity, or being above the age of 65. Luckily, if you are wearing heels that are higher than two inches, which are difficult to walk in to begin with, you are allowed to take them off before taking the one leg stand test so you are on a level playing field. If you are not informed of this, it may serve as a defense.
Finally, if you failed the Horizontal Gaze Nystagmus Test, it is important to know that the test is only 77 percent accurate so there is a possibility to contest it. There are also eye conditions that could make it so your eyes move that way all the time even when not taking the HGN test, which a police officer would not be able to verify. If you can prove that you have an eye condition, you may have a legitimate defense against this test.
What happens if I fail the Field Sobriety Tests?
In the event that you fail a field sobriety test, you will then be handcuffed, transported, and then finally given an opportunity to take a breathalyzer chemical test. There is often times a delay of up to two hours in between being stopped by law enforcement and the time in which you are given a breathalyzer. One of the major defenses in a defense of DWI is that the breath test result is not always accurate because it was not taken at the time closest in point to when you were driving.
It is important to understand how alcohol works in the blood stream. Due to the absorption ratio, it can take about 45 minutes for the alcohol to reach your bloodstream. Sometimes it takes longer than 45 minutes to absorb alcohol based on if you had a full stomach or not, to release the bloodstream alcohol, so when there’s a delay in time, often that can create a false positive reading. You may be completely sober or have a blood alcohol level well below the limit at the time you’re stopped. However, two hours later when you take a blood test or chemical breath test, you may have a false positive rate.
If you are charged with driving while intoxicated, it is important to understand the possible classifications of a DWI and the consequences you may face. Driving while intoxicated convictions and consequences are dependent on the level of your blood alcohol content.
If you have a .00 to .07 that is presumed to be driving while impaired, it is just considered a traffic infraction. However, if the driver is under 21-years-old, there is a zero tolerance policy. If you’re under 21 and you have greater than a .025, you could be prosecuted as a crime; instead of by the DMV. The level of the blood alcohol content will decide what the penalties and crimes could be.
The convictions for driving while intoxicated in the State of New York are serious and can land you up to 15 days in jail or a minimum fine of $300, if your blood alcohol content is between 0.05-0.07. Though you are driving while impaired, it is not above the legal limit.
In addition to a breathalyzer test, police officers will perform field sobriety tests to determine whether or not a case can be built against you when you are suspected of driving while intoxicated. In the event that you are pulled over and are arrested for suspicion of driving while intoxicated, seek legal counsel with an experienced attorney to discuss your particular case. The higher the blood alcohol content, the more serious consequences you will face. For example, if your reading is from .08 to .18, 18, that’s aggravated DWI; additional penalties, additional loss of license, additional fines, additional potential jail time.
What programs can I participate in after a DWI conviction?
After a DWI conviction, you may be required to participate in a number of programs to work to take steps to prevent any driving under the influence of alcohol from occurring in the future.
STEP is a referral program given by the county. It’s a referral program. If you have a blood alcohol content of 0.13 or higher, but virtual in every case no matter what the reading, the court will mandate you, require you to get evaluated. It’s called an alcohol and drug abuse screening. They can evaluate you to determine whether it is necessary to receive substance abuse treatment.
The Victim Impact Program is performed by the advocacy group Mothers Against Drunk Driving. The court will require and mandate you to attend a session of VIP. Those who have been convicted of drunk driving will go to a session to listen to the stories of family members who have been impacted by the actions of a drunk driver, many of which include the loss of a loved one.
Finally, there is the Ignition Interlock Device program. If you are convicted of driving while intoxicated in New York State, the court may require you to install this device in your car. It acts as a breathalyzer that you will be required to take every time you start your car. If any alcohol is detected, the car will not start. It is important to know that you will also be responsible for the financial burden associated with the Ignition Interlock Device.
Contact a New York DWI Attorney
If you have been charged with driving while intoxicated in New York State, it is essential that you consult with an experienced DWI attorney who can assess your case, look for defenses, and fight for your future.
If you are in need of legal counsel in New York State, please feel free to contact Grunwald & Seman, P.C. and we would be happy to assist you.