NY State DWI – from arrest
to conclusion of the case, i.e., from “teeth to tail”
Before drafting this page I read many other attorneys
web pages about NY driving while intoxicated. I was underwhelmed for 2 reasons:
(1) either it gave no real information other than “hire me,” or (2) it gave
detailed information in unintelligible gibberish. That is why I decided to
craft this page explaining in plain English what a DWI is, how to assert your
rights if you are stopped by the police and have been drinking, and, if you
are seeing this post arrest a comprehensive guide to the process. All of this
is written in plain English understandable to everyone.
DWI – what is it?
Broken down simply, there are 2 ways of being found
guilty in NY of driving while intoxicated: (1) having a blood alcohol content
of .08 or more, or (2) operating a vehicle while your ability to drive is
impaired because of intoxication. This has nothing to do with your BAC. You
could have a BAC of less than .08 and still get convicted of NY State DWI,
NY VTL § 1192(2).
Most people believe that being less than .08 is
legal. It is often referred to as the “legal limit.” However, this is NOT
TRUE. In fact, the OPPOSITE is true – that if your BAC is proven
to be .08 or higher you are guilty of VTL § 1192(3) / NY DWI, EVEN IF your
ability to operate a vehicle is impaired. So you should think of the BAC being
.08 or higher as the “illegal limit,” NOT being .08 or less as the “legal
A 3rd category of NY DUI is driving
while ability impaired, or “DWAI.” The main difference for civilian purposes
is that where DWI is a crime (a misdemeanor or a felony), NY DWAI, NY VTL
§ 1192(1) is an infraction; i.e., not a crime. It is still an alcohol related
conviction; it will still show up on your driving abstract and a criminal
history check; and the DMV will still take action against your license, however
you will not have a formal criminal record when convicted of DWAI instead
of DWI. Normally, you are not charged at the outset with DWAI it is something
you can plea bargain for instead of going to trial on the criminal DWI charge.
The first step – the police
stop. Just you, the cops, revolving red lights, and a dark road
If you have been stopped in NY State and have been
drinking to any appreciable degree, you need to wrap yourself around this
cold, hard, sobering fact: You are going to be arrested. Let me say that again
– YOU ARE GOING TO BE ARRESTED. You are not going to “talk” your way
out of it or “pass” the tests. The cop is not going to take your keys and
make you walk home. You are going to be arrested. And there is nothing I can
explain to you which will prevent that. What I can explain, however, are your
constitutional rights in dealing with the police so that, at the end of the
day, the prosecutor has no evidence by which she can prosecute you. What you
do on the stop, and whether or not you assert your constitutional rights,
WILL be the difference between a dismissal of the charges and an alcohol
there is NOTHING you can do to avoid the
and A LOT you can do to avoid the conviction
When stopped, pull over safely and keep your hands
on the steering wheel. If you can pull over in a legal parking space do so
(more about this later). When the cop comes to the car roll your window down
about ¼ of the way. Hand him your license and registration when he asks.
SAY NOTHING! (Saying nothing will be a recurring theme). If he asks “do
you know why I pulled you over, say “no” because you don’t. If he asks “do
you know the speed limit say “I have given you my license if I have done something
wrong you can write me a ticket.”
Here’s the thing – you have a right to remain silent.
However, this is difficult for the average person to do. So, rather than stay
totally mute, you just answer his question with a non-responsive question
or answer. Eventually, the police will get around to “have you been drinking
tonight.” The answer to this is NOT “2 beers.” The answer is “I do
not care to answer your questions and will maintain my right to be silent.
I want a lawyer before I answer any questions.” Now, this will likely anger
the cop – even if he does not show it. He may threaten to arrest you on the
spot, tell you that you are “interfering” with an investigation, or he may
even try to pretend that he is trying to help you: “look man…you have bloodshot
eyes…you were swerving…you smell like you have been drinking…I mean, this
doesn’t look good for you and I have to hear your side of the story…”
Whatever the cop says, it is irrelevant. He
is lying to you. He cannot arrest you on the spot for not answering his
questions and by the same token he is not looking to help you. If you are
being questioned to this degree the police have already made up their mind
to arrest you. So at this point you have 3 choices: (1) you can tell the truth;
(2) you can lie; and (3) you can continue to exercise your right to remain
silent. Now, telling the truth will only give the state more evidence, and
lying will only get you more charges. So, what you do is say nothing.
note on a police investigation, lying, and you:
You need to
understand this very clearly. A police officer, in the course of his investigation,
CAN LIE to you. And not only do they lie, they are trained in effective
lying techniques. However, in your responses, YOU CANNOT LIE BACK.
If you do, you will catch extra charges.
So clearly, you cannot answer any questions about
where you were coming from, where you are going, and whether you have been
drinking. However, it is very difficult to just sit there and ignore an angry
cop. So when they try to get you to talk to them through threat, intimidation,
kindness, or otherwise, when they end their narrative, your sole response
is “officer, am I free to go?” If by some miracle they say “yes” do it!
However, that is not likely. The cop will may ask
you to do some tests like counting on your fingers, reciting the alphabet,
etc. These are called “pre-exit tests,” which are designed to give him an
articulatible reason to continue the investigation by giving you field sobriety
tests outside of your car. Again, don’t do them. Just ask in response to anything
he may say “officer, am I free to go?” If he asks to search your car simply
say “sorry, I do not give consent to search me or my car.” He may try to convince
you by saying “well if you don’t have anything to hide you’d let me search
what am I supposed to think?” The reality is that it is irrelevant
what the cop thinks. Nor does refusing a consent search give rise to probable
cause to search. Just shrug your shoulders and say “I don’t give consent…am
I free to go?”
Eventually, they are going to ask you to step out
of the vehicle. While there is conflicting authority on whether they can order
you out of a vehicle without first placing you under arrest, I believe that
the police have the right to order someone out of a vehicle that is not under
arrest. Nonetheless, they will likely at first ask you to get out of the car.
To that you say “am I under arrest,” to which they will likely say “no.” At
that point, you can simply decline their invitation to step out. However,
there will come a point when they order you out of the vehicle. Make it clear
that you are not getting out of the car unless they are not giving you a choice:
“officer, are you asking me or telling me to get out of the vehicle.” At a
certain point, they will make it abundantly clear that they are ordering you
out of the vehicle. At that time you comply.
today’s day and age EVERYTHNG is being video and audio recorded. YOU
as the criminal defendant are entitled to copies of all audio and video recordings.
There is serious legal significance between a cop asking you to do something
and you complying and ordering you to do something against your wishes. It
can only help, and not hurt, your court case to make the cop order you to
do things. So make the cop clearly articulate his orders to you.
Before you get out of the vehicle do this – roll
up the windows and turn the vehicle off. Once you get out of the car lock
the car and put the keys in your pocket. Why? Because the police have the
right to search you for weapons. However, “you” is not just “you.” It’s “you”
and any “reachable area.” If your vehicle is locked with the windows rolled
up nothing in the vehicle is reachable; hence the cops cannot use that as
a pretext to search your vehicle. If the cop asks you why you did that, just
respond “I’m out of the vehicle officer, now what?” If he asks for the keys
to your car tell him no; if he asks for consent to search your vehicle tell
Remember – NEVER consent to any searches of your
vehicle or you!
The cop got you out of the car to do field sobriety
tests. Some common ones are the horizontal gaze nystagmus (following a pen
or object with your eyes), one leg stand, walk and turn. Another field sobriety
tests is the hand held alcohol sensor. This is NOT a chemical test,
although you do blow into a machine. It is a screening device that, while
it adds to probable cause to arrest you, is inadmissible in court.
You should decline all invitations to take any
tests. Why? Look, if you are out of the car and you have been drinking the
cop already knows it. He is not using these tests to see if you “pass” so
you can go on your merry way. He is using them to build his case against you.
Let’s analyze this for a moment – who is the average cop that stops you on
the midnight shift? He’s likely a young man or woman in his 20’s or 30’s.
He or she has been to college. He or she is probably not a puritan. He or
she has probably partied hard at one point. Do you really think he could not
tell you were drunk by the time he said to you “let me see your license and
registration?” No, he or she already knows you are drunk. You are getting
arrested whether or not you do the tests. So don’t do them – refuse.
word on refusing field sobriety tests:
your constitutional right to remain silent CANNOT be used against you
in court. However, exercising your constitutional right to refuse field sobriety
tests CAN be used against you in court. The distinction is rooted in
the fact that the constitution only provides a citizen a right against verbal
incrimination and not other types of incrimination. It has been held that
refusing a field sobriety test shows a consciousness of guilt which is admissible
at trial. Further, refusing to provide a breath sample for the alcohol sensor
is a separate infraction. Refusing other field sobriety testing is not.
second step – the arrest
Eventually, the cop will have enough of you and
him trying to outwit each other, and you will be placed under arrest. If your
vehicle is on the shoulder of a road or in a roadway and you do not have a
passenger to drive the car away the police will have the vehicle towed. So
long as the police have to tow your vehicle they will have the right to search
it – not for contraband but do an “inventory” to safeguard your property.
However, if in doing this legal inventory they find contraband it’s fair play.
This is why you try to pull over into a legal parking
space. If your vehicle is legally parked they have no right to tow it and
therefore no right to “inventory” it. Since you are under arrest they will
have searched your pockets and taken your keys. If they start to search your
vehicle for whatever reason make it clear that you are not consenting and
point out that your vehicle is legally parked so they have no right to tow
it. They will do what they want and at that point there is nothing you can
do about it. What you are doing though is creating a record (remember, everything
is on video / audio) so if they do find contraband it will have to be suppressed
from evidence. Further, if you have someone with you who can drive tell the
police that you are releasing the car to that person. Again, they may not
allow that but that is not the point. The point is to create a record that
they violated your rights and had no justification to tow your car; that the
towing of the car and inventory was just a pretext to do an illegal search.
Even though you are under arrest, the handcuffs
are on, and you are in the back of a patrol car, you have likely NOT
been read your rights. Understand this – do not take this as in invitation
to start running your mouth because they can’t “use” it. Further, it is a
myth that the charges have to be dismissed if you are not read your rights.
An entire book can be written in Miranda rights but just know this
– continue to keep your mouth shut.
3 – the chemical test
The chemical test is also called the “breathalyzer.”
After you have been placed under arrest, and within 2 hours of said arrest,
you will be given the opportunity to submit to a chemical test, most likely
by breathalyzer. There are ramifications for providing a sample and ramifications
NY, like all states, is an “implied consent” state,
which means that you implicitly give your consent to submit to a chemical
test as a condition of either having a NY driver’s license or driving on the
roads of NY State. This means that if you refuse the NYS Department of Motor
Vehicles can take action against your license for refusing. That is the down
side. On the up side, the state gets less evidence for the prosecutor to use
against you in the judicial proceeding.
My advice is to never, ever consent to a chemical
test. Here is why. The citizens of NY are pretty fed up with drinking and
driving. This is reflected in our laws and the policies of the county district
attorney’s that prosecutes all of the New York DWI cases. If a person provides
a breath sample that is .18 or more they are not just charged with DWI but
aggravated DWI, a conviction of which requires the defendant to be placed
on 3 years mandatory DWI probation which is very onerous. If a person is found
guilty of regular DWI he now must place a breathalyzer interlock in his vehicle
at his expense for up to 1 year. Further, many district attorneys have their
own policies as to when to hold someone “as charged” rather than offer a reduced
charge based on what their breath sample level returns. Some it’s as low as
a .11. Therefore, if you do not provide a breath sample then you can never
be charged with aggravated DWI and you have not hit a number for the district
attorney’s “policy” to hold you as charged. So in my opinion you have nothing
to gain and everything to lose by consenting to the chemical test.
If, however, you refuse the chemical test then
you will be required to appear before a tribunal of the NYS DMV for a “refusal”
hearing. This hearing is administrative and separate and apart from that of
the judicial court proceeding; you can be found “not guilty” of the DWI in
court but found “guilty” of refusing the chemical test at the hearing, and
conversely you can be found guilty of DWI in court and “not guilty” of refusing
the chemical test before the DMV tribunal. If you are found to have refused
your license will be revoked for 1 year and you will have to pay a $750.00
like refusing field sobriety tests, refusing the chemical test likewise shows
consciousness of guilt and is therefore admissible in evidence at trial.
A word about the breath
test – how does it work anyhow?
Requiring no digestion, alcohol is absorbed unchanged into
the blood stream. The blood breath ratio of 2100:1 has been accepted from
computing BAC from breath. This means that 2,100 milliliters of lung air contains
the same amount of alcohol as one milliliter of blood. Consequently, breath
alcohol concentration is believed to be as accurate as a blood test for alcohol
In addition to being invited to take a chemical
test when in custody you will also be invited to answer a whole series of
questions. Most of them are the same as you were being asked to provide roadside.
You may also be asked to do field sobriety tests again. Politely decline and
tell them that all of the information you are willing to provide is on your
driver’s license and that you are not going to answer any questions without
a lawyer. In fact, to every question they ask repeat that you are not
going to answer any questions without a lawyer and that you want a lawyer.
Other than providing them with your name, address, and date of birth (which
again is on your license) answer nothing. In addition, sign nothing other
than a bond form that you may have to sign to be released, or a promise to
appear if they are willing to release you without posting a bond.
word about asking for a lawyer
arrest, invoking your right to counsel is pure magic. Under NY State Law,
once you demand a lawyer the police CANNOT question you anymore. They
cannot legally convince you to subsequently waive your right to counsel. ALWAYS
demand your right to counsel WHENEVER you find yourself in police custody
or on a stop in public.
4th step – arraignment
Your very first appearance in court is called the
arraignment. This, however, can be tricky, because in some places the police,
directly after processing, bring you before the court for arrangement without
first releasing you and setting up a future arraignment date. This is very
problematic, as unlike any other criminal case in NY state a DWI arrangement
is more than just a pro forma proceeding. If there is one type of case a defendant
absolutely needs counsel for an arraignment is at a DWI arraignment. This
is because at such an arraignment, you have rights that you can lose if you
do not assert them. Further, depending on the situation it may be in your
interest to waive the rights – but you don’t know it. Also, your license or
privilege to drive is usually suspended, however, this is only proper when
the breathalyzer results are properly before the court and authenticated.
Further, even if your license is suspended you can demand a hearing for temporary
limited privileges. You will also have to make a bail application at an arraignment
and you have no idea of the factors you need to present to get a low or no
If you find yourself before a court on a DWI arraignment
without a meaningful opportunity to obtain counsel this is a place where you
need to stand up for yourself. You cannot put any faith whatsoever in the
judge. The judge is not on your side. Under the judiciary laws, the judge
is supposed to act as a criminal defendant’s attorney when the person is being
arraigned without counsel. Most judges do not do this. They just pull your
license, set bail, and send you on your way.
need to speak up!
Tell the judge how long you have been in police custody and tell the judge
that you “move to adjourn arraignment” for a reasonable time to retain counsel.
The judge is going to be reading you a lot of stuff and asking you if you
understand it. If you do not understand do not just nod your head “yes,” say
“no I do not and I want an adjournment so I can hire an attorney.” Liberally
tell the judge of anything and everything that you do not understand. Ask
the judge what your rights are. Often, a judge will assign a lawyer in court
to represent you at the arraignment. This is insufficient, as you as the defendant
have a right to an attorney of your choice. Tell the judge that and again
repeat that you are demanding an adjournment of the arraignment. Will they
do it – most times no. However, yet again that is not why you are doing it.
You are doing it so that the lawyer you eventually retain can get you relief
that should have been given to you at the arraignment.
Also at the arraignment you will enter a plea (the
court will enter a “not guilty” plea if you are there without an attorney).
Conditions will be set. You will be required to submit to an interview for
screening for alcohol counseling with TASC, a county agency. If they recommend
a treatment plan then you will have to go adhere to that treatment schedule
whether you like it or not.
5 – retain counsel
Eventually, you will be released from custody.
Often times it is before the arraignment. You need counsel. ASAP. Retaining
the right counsel is the difference between a good outcome and a bad outcome.
It’s the difference between making 2 court appearances and making numerous
court appearances; it’s the difference between quickly getting your license
back and having it revoked for a year; it’s the difference between a brief
period of pre-resolution counseling and months of pre-resolution counseling.
The time to retain counsel upon a NY DWI arrest is the minute you are out
6 – discovery
Eventually, your file will land on a prosecutor’s
desk. If you followed my instructions it will look unlike the dozens of other
DWI files she is prosecuting because it will contain NO EVIDENCE. Plus,
any evidence it does contain will likely have been illegally seized. This
is the point of keeping your mouth shut and not consenting to anything.
Your defense counsel is entitled to copies of not
just the file but the video and audio tapes. Again, what you did during your
stop and whether and what kind of evidence you provided the police is going
to determine how the case ultimately resolves.
7 – preliminary hearings
As a criminal defendant you are entitled to certain
pre-trial hearings to determine if probable cause exists to so much as hold
you, let alone prosecute you. This hearing is held in open court and is recorded
by a stenographer. The primary hearings and issues are for suppression of
evidence under NY CLP § 710.20 and are generally as follows:
Huntley hearing to determine if statements were voluntary
Sandoval hearing to determine the extent of cross examination
as to prior convictions / bad acts
Dunaway hearing to determine if evidence obtained after
arrest was obtained as the result of an illegal arrest or stop
Mapp hearing to determine whether physical evidence
should be suppressed
Ventimiglia hearing to contest the prosecution being allowed
to assert before the judge a defendant’s prior criminal history on their direct
Wade hearing to suppress identification evidence
What can result from these hearings is a suppression
of all the evidence and then the charges must be dismissed; a suppression
of some evidence which would mean that the prosecution could still proceed
forward with the case without the suppressed evidence; or a dismissal of some,
but not all of the charges. In addition, doing these hearings locks the police
into their story and provides a record for cross examination by the defense
8 – plea or trial
By this point, if all or some of the charges survived
both the prosecution and defendant has a good sense of the quality and quantity
of the evidence. This is the time for all parties to “fish or cut bait.” If
the parties cannot enter into an agreed plea offer through negotiations then
the case gets put down for trial.
word on the benefits of entering a plea
There are several
reasons why criminal defendant would consider entering a plea to a reduced
charge or even to the top charge. One is if the offer will resolve the matter
with a non-criminal disposition. You can often avoid jail in a plea deal.
Similarly, in a plea deal you can incorporate terms of your sentence, whereby
if you are found guilty you leave sentencing up solely to the discretion of
If the case goes to trial it is the prosecution
that has the burden of proof on every element, and they must prove it beyond
a reasonable doubt. The trial can be held before the judge or before a jury
– this is strictly up to the defendant whether or not to waive a jury. Sometimes
defense counsel makes written pre-trial motions. Often these motions focus
on jury instructions and evidentiary issues.
The trial proceeds with the prosecution and defense
lawyer picking a jury. The prosecution makes an opening statement, then the
defense counsel. The prosecution calls its witnesses and the defense lawyer
cross examines. After all prosecution witnesses the prosecution rests. At
that point the defense counsel moves for a directed verdict, the legal standard
being that given all the evidence in the light most favorable to the prosecution,
the prosecution has not even a prima facie case.
If this application is denied the defense can present
witnesses. The defendant can, but does not have to, testify. The defendant
can produce eye witnesses, expert witnesses, or no witnesses. At the close
of the defense case, the defense rests and usually moves to dismiss arguing
that any verdict of guilty would be against the weight of the evidence as
a matter of law. If that application is denied the case will go to the jury.
For a defendant who is found guilty or pleads guilty his case moves into the
9 – sentencing
Upon being convicted by plea or trial of a misdemeanor
or felony, in most cases the defendant is directed to submit to the department
of probation for evaluation so they can prepare and submit to the court a
pre sentence report. The court does not have to follow the sentencing recommendations
of the probation department.
Sentences can vary greatly. Fines, probation, jail,
conditions (a conditional discharge), or all or part of those can be imposed.
For a NY DWI or DWAI, conditions of a discharge usually include attending
the MADD victim impact panel, completion of any TASC counseling, and successful
completion of the NYS DMV drinking driving program (DDP), which is also required
to re-obtain full driving privileges. A violation of the conditions usually
results in a remand to custody (i.e., jail).