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Alcohol and drug
related driving offenses
On average, almost 90,000 DWI related arrests
are made in New York State every year! They can happen to almost anyone
and can result in serious fines, dramatically increased insurance rates, loss of
driving privileges and, sometimes, even jail or prison sentences. They are
offenses that prosecutors and courts take very seriously and anyone charged with
a DWI offense needs to be sure that they are represented by an attorney that
understands one of the most intricate and complicated areas of criminal defense
practice.
Defending people charged with alcohol related
offenses is a very specific area of criminal law. Effective defense of DWI
related charges sometimes involves seeking the best possible "plea agreement"
with the District Attorney's office. Other times, it may mean taking the
charges to a trial. Whatever the situation, an attorney that understands
both the law and the science of determining whether an individual is
intoxicated, how that was determined by the police and whether proper procedures
were followed, often determines the outcome of a case.
In New York State there are a variety of
possible alcohol related vehicle offenses. Which offense is charged is
determined by the "Blood Alcohol Content" (BAC) of the person arrested and
whether or not they have had previous convictions for alcohol related motor
vehicle offenses. In cases where a party, other than the intoxicated
driver, is injured or killed very serious criminal charges may be filed,
including reckless murder.
DWAI (Driving While Ability
Impaired)
The lowest level of alcohol related motor
vehicle offense is Driving While Ability Impaired (DWAI). Unlike
virtually all other New York State alcohol related vehicle offenses, it is not a
criminal offense (misdemeanor or felony). Instead, it is a "violation"
somewhat like a speeding ticket...like a very, very serious speeding ticket.
To convict someone of DWAI the state must prove, beyond a reasonable doubt, that
a person operated a motor vehicle while their ability to safely and lawfully
operate that vehicle was impaired by having consumed alcohol. A first time
conviction can result in a fine of up to $500, a jail sentence of up to 15 days
and will result in a 90 day suspension of a driver's license. A second
conviction for DWAI within 5 years of another alcohol related vehicle offense
dramatically increases all of those penalties. In addition, a conviction
for DWAI will almost certainly lead to a substantial increase in auto
liability and collision insurance rates.
DWAI is often a charge that a person arrested
for DWI will end up pleading guilty to as a result of a "plea bargain".
Since it is not classified as a "crime" and has relatively small penalties,
attorneys will often seek to convince district attorneys to agree to drop a DWI
charge in return for a plea of guilty to DWAI. The likelihood that an
attorney can, eventually, obtain such an agreement is often based on what kind
of alcohol related driving record a defendant has. Also, in many counties
the District Attorney's office will have a "policy" of not plea bargaining a DWI
charge down to a DWAI charge if the blood alcohol level was above a set
percentage (ex. no plea down to DWAI if B.A.C. was above .14%). However,
there is no consistency from one county to another at to what percentage B.A.C.
is "too high" to negotiate a deal down to DWAI.
DWI-Driving While Intoxicated
(Misdemeanor)
In
New York State there are two different drinking and driving offenses that are
misdemeanors (a lesser "crime"). They are known as "per se"
Driving While Intoxicated (DWI) and "common law" DWI. Both
offenses are spelled out in Vehicle and Traffic Law Sec. 1192.2 and 1192.3.
Per se DWI is charged when a motor vehicle is operated by a person whom a
chemical test of breath, blood or urine shows the driver had a blood alcohol
content (BAC) equal to or higher than .08%. The important aspect to
understand about a "per se" DWI charge is that to convict a person a
prosecutor doesn't have to show that the person acted intoxicated or showed
signs that his/her ability to drive was impaired. All that has to be
proved is that the blood alcohol level was at .08% or more and that person was
operating a motor vehicle. However, that doesn't mean that the conduct of
the driver is irrelevant. In order to arrest someone and obtain a BAC
sample of breath, urine or blood the police officer must have "probable cause"
to believe that person is intoxicated. That "probable cause" is typically
developed by observing the driver on the road and after stopping the driver, as
well as, on the basis of what are known as "Field Sobriety Tests". In
contrast, "common law" DWI is all about the conduct of the person charged with
the offense. It is based upon observations of a police officer and/or
other witnesses who claim that the behavior and demeanor of the driver, along
with the "Field Sobriety Tests" prove the driver was intoxicated.
A conviction on either
a "per se" or "common law" DWI can result in a punishment of up to 12
months in jail, a fine of up to $1000 and the suspension of your drivers license
for 6 months. A second DWI conviction within 10 years can dramatically
increase the penalties. In some cases subsequent convictions can elevate
the offense to a felony charge (the most serious type of crime) and involve very
substantial prison time and fines.
As of August 15, 2010 a
new law in NYS has taken effect that imposes the mandatory installation an
alcohol ignition interlock device (IID) on any vehicles a driver
convicted of misdemeanor DWI owns or operates. The minimum period of
imposition of an IID is 6 months. The person convicted of DWI is
responsible for the cost of installation and monitoring. In most NYS
counties the monitoring and supervision of IID's is done by the county probation
department.
Misdemeanor DWI is the
most common form of intoxication offense charged in New York State.
Aggravated Driving While
Intoxicated (ADWI)
A new misdemeanor
intoxication offense in New York was added in the summer of 2006. It is
called Aggravated Driving While Intoxicated (ADWI). This
offense is charged when a blood alcohol reading of .18% or greater is determined
by a chemical test. If convicted of ADWI the possible penalties are much
greater than a conviction for either "per se" or "common law" DWI
(this includes fines, possible jail time and length of driving license
suspensions/revocations).
Driving While Ability
Impaired-Drugs (DWAI-D)
Operating a motor
vehicle while the ability to operate it safely has been "impaired by drugs" is
an equivalent offense to DWI. It can be charged as either a misdemeanor or
a felony and subjects the person charged with similar criminal penalties and NYS
DMV license suspensions/revocations. A previous conviction (within past 10
years) for either DWI or DWAI-Drugs is the predicate for charging DWAI-Drugs as
a felony. A person can be charged with DWAI-Drugs from the use of either a
"controlled substance (i.e. illegal drug) or even a lawfully prescribed
prescription drug. Probable cause for arrest is usually based upon the
same Standardized Field Sobriety Tests used in DWI arrests. However,
unlike DWI a "breath test" is not used to determine the level of intoxication.
Rather, blood or urine tests are used to detect the presence of drugs.
These tests can determine if drugs have been consumed in the recent past.
However, they often cannot be used to determine whether someone was or was not
intoxicated by drugs at the time they were driving (or arrested). Very
often DWAI-Drugs is charged in conjunction with other criminal charges such as
"Criminal Possession of a Controlled Substance" if the police also found drugs
on the person or in the car of the individual arrested.
DWI-Driving While Intoxicated
(Felony)
A person convicted of
DWI is subject to being charged with DWI as a Felony if their second DWI arrest
occurs within 10 years of the date of their first conviction for DWI.
Under NYS penal law there are two types of criminal offenses: misdemeanors and
felonies. Misdemeanors are a less serious category of criminal offense
which can be punished by up to one year in jail (county or city jail).
Felonies are more serious offenses that are punishable by one year or more
in state prison. Felony DWI is an "E-Felony." This is the lowest
category of offenses that are considered felonies. In order for a felony
to be prosecuted an indictment must be issued by a Grand Jury which has heard
the evidence and has, by majority vote, determined that a felonious offense
probably was committed by the person indicted. A misdemeanor can be
prosecuted simply on the basis of a document (called an "information") filed by
the District Attorney's office.
As of 2010 a new form
of FELONY DWI has been added involving DWI with a minor under 16 years
old in the vehicle while DWI. This law is known as "Leandra's Law" and
escalates the possible consequences of a first time DWI conviction to include a
state prison sentence of 1 year or more, revocation of your driver's license,
fines up to $5000 and probation for up to 5 years. District Attorney
offices in NYS have been aggressively enforcing this law and, generally, will
not offer to reduce the offense to a non-felony offense.
Chemical Tests and Test Refusals
Almost all DWI arrests
involve the police requesting that the suspected intoxicated driver agree to
provide a sample of their breath, blood or urine for chemical testing.
Under NYS Vehicle and Traffic Law a refusal by a driver to provide such a sample
will result in a revocation of their driver's license or driving privilege in
NYS for one year. A second refusal within 10 years of a previous refusal
dramatically increases the revocation period. The chemical tests that
invoke these harsh sanctions must be given by an officer who has been trained to
give them (in the case of breath tests) and has been certified by the NYS
Department of Health to give such tests. If a blood test is requested the
blood must be drawn by a nurse, physician or other person trained and certified
to draw blood. The actual testing of the blood or urine must be done in a
certified laboratory (usually operated by a law enforcement agency).
Chemical breath tests are admissible in court if the operator is properly
trained and certified, if the follow a very precise procedure and the test
equipment has been properly maintained and calibrated. The chemical breath
test is almost always given at a police station. Sometimes police officers
will use a hand held breathalyzer at the scene of an arrest. These
machines are not considered accurate enough to provide reliable evidence of the
degree of intoxication for use in court. However, they can be used to as
"probable cause" to arrest someone. A refusal to take a field breath test
does not invoke the revocation a driver's license that a refusal to take a
chemical breath test at a police station does. Refusal to take a field
breath test is simply a minor traffic violation.
Frequently asked questions
(click
here)
Other DWI Related Crimes
Vehicular Assault (1st and 2nd degree)
Vehicular Manslaughter (1st and 2nd degree)
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Hudson Valley-
Counties Served
Orange
County, Putnam County, Dutchess
County, Ulster County, Rockland County
Hudson
Valley Communities Served
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Orange County, NY
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Blooming Grove, Town of Blooming Grove, Bullville, Campbell
Hall, Central Valley, Town of Chester, Village of Chester, Chester, Town
of Cornwall, Cornwall on Hudson, Cornwall, Town of Crawford, Crawford, Village
of Florida,
Florida, Fort Montgomery, Town of Goshen, Village of Goshen, Goshen, Town of
Greenville, Greenville, Greenwood Lake, Town of Hamptonburgh, Hamptonburgh, Village of Harriman,
Harriman, Town of
Highlands, Highlands, Highland Falls, Highland Mills,
Village of Maybrook, Maybrook, City of Middletown, Middletown, Town of Minisink,
Minisink, Town of Monroe, Village of Monroe, Monroe, Town of Montgomery, Village of
Montgomery, Montgomery, Town of New Windsor, New Windsor,
City of Newburgh, Town of Newburgh, Newburgh, Otisville, Port
Jervis, City of Port Jervis, Salisbury Mills, Slate Hill, Town
of Tuxedo, Village of Tuxedo, Tuxedo Park, Tuxedo, Unionville, United
States Military Academy, Vails Gate, Walden, Town of Wallkill, Wallkill, Town of Warwick,
Village of Warwick,
Warwick, Washingtonville, Town of Wawayanda, Wawayanda, West Point,
Westtown, Town of Woodbury, Village of Woodbury, Woodbury.
Orange County, NY - Courts Served:
Blooming
Grove Town Court, Chester Town Court, Chester Village Court,lCornwall Town
Court, Crawford Town Court, Deerpark Town Court, Florida Village Court,
Goshen Town Court, Goshen Village Court, Greenville Town Court, Greenwood
Lake Village Court, Hamptonburgh Town Court, Harriman Village Court,
Highlands Town Court, Maybrook Village Court, Middletown City Court,
Minisink Town Court, Monroe Town Court, Monroe Village Court, Montgomery
Town Court, Montgomery Village Court, Mount Hope Town Court, New Windsor
Town Court, Newburgh City Court, Newburgh Town Court, Orange County Court,
Otisville Village Court, Port Jervis City Court, Tuxedo Town Court,
Unionville Village Court, Walden Village Court, Wallkill Town Court, Warwick
Town Court, Warwick Village Court, Washington Village Court, Wawayanda Town
Court, Woodbury Town Court.
(for Orange County
address/phone number directory,
click here).
Ulster County, NY
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Accord, Bearsville,
Big Indian, Bloomington, Boiceville, Cherrytown, Chichester, Clintondale,
Connelly, Cottekill, Cragsmoor, Eddyville, Ellenville, Esopus, Gardiner,
Glasco, Glenford, Grahamsville, Greenfield Park, High Falls, Highland,
Highmount, Hurley, Kerhonkson, Kingston, Krumville, Lake Hill, Lake Katrine,
Leibhardt, Lyonsville, Malden, Malden Hudson, Malden on Hudson, Marlboro,
Marlborough, Mettacahonts, Milton, Mldn on Hdsn, Modena, Mount Marion, Mount
Merion Park, Mount Tremper, Napanoch, New Paltz, Olive, Olivebridge,
Oliverea, Phoenicia, Pine Hill, Plattekill, Port Ewen, Rifton, Rosendale,
Ruby, Saint Remy, Samsonville, Saugerties, Shady, Shandaken, Shokan, Spring
Glen, Stone Ridge, Sundown, The Vly, Tillson, Ulster Park, Walker Valley,
Wallkill, Wawarsing, West Camp, West Hurley, West Park, West Saugerties,
West Shokan, Whitfield, Willow, Woodstock,
Town of
Denning,
Village of
Ellenville,
Town of
Esopus,
Town of Gardiner,
Town of
Hardenburgh,
Town of Hurley,
Town of Kingston,
Town of Lloyd,
Town of Marbletown, Town of
Marlborough,
Town of
New Paltz,
Town of Olive,
Town of Plattekill,
Town of
Rochester,
Town of
Rosendale,
Town of Saugerties, Town of
Shandaken,
Town of Shawangunk,
Town of Ulster,
Town of Warwarsing, Town of
Woodstock
Ulster County, NY - Courts Served:
Denning
Town Court, Ellenville Village Court, Esopus Town Court, Gardiner Town
Court, Hardenburgh Town Court, Hurley Town Court, Kingston City Court,
Kingston Town Court, Lloyd Town Court, Marbletown Town Court, Marlborough
Town Court, New Paltz Town Court, New Paltz Village Court, Olive Town Court,
Plattekill Town Court, Rochester Town Court, Rosendale Town Court,
Saugerties Town Court, Saugerties Village Court, Shandaken Town Court,
Shawangunk Town Court, Ulster County Court, Ulster Town Court, Villain
Village Court, Wawarsing Town Court, Woodstock Town Court.
(for Ulster County
address/phone number directory,
click here).
Sullivan County, NY
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Barryville, Bethel,
Bloomingburg, Burlingham, Callicoon, Callicoon Center, Claryville, Cochecton,
Cochecton Center, Eldred, Fallsburg, Ferndale, Forestburg, Forestburgh,
Fremont, Fremont Center, Glen Spey, Glen Wild, Grahamsville, Hankins,
Harris, Highland Lake, Hortonville, Hurleyville, Jeffersonville, Kauneonga
Lake, Kenoza Lake, Kiamesha Lake, Lake Huntington, Lew Beach, Liberty,
Livingston Manor, Loch Sheldrake, Long Eddy, Mongaup Valley, Monticello,
Mountain Dale, Mountaindale, Narrowsburg, Neversink, North Branch, Obernburg,
Parksville, Phillipsport, Pond Eddy, Port Jervis, Rock Hill, Roscoe,
Smallwood, South Fallsburg, Summitville, Swan Lake, Thompsonville,
Westbrookville, White Lake, White Sulphur Springs, Woodbourne, Woodridge,
Wurtsboro, Youngsville, Yulan, Town of Bethel, Town of Callicoon, Town of
Cochecton, Town of Delaware, Town of Fallsburgh, Town of Freemont, Town of
Highland, Town of Liberty, Town of Lumberland, Town of Mamakating, Town of
Rockland, Town of Neversink, Town of Thompson, Town of Tusten.
Sullivan County, NY - Courts Served:
Bethel
Town Court, Bloomingburg Village Court, Callicoon Town Court, Cochecton Town
Court, Delaware Town Court, Fallsburg Town Court, Forestburgh Town Court,
Fremont Town Court, Highland Town Court, Liberty Town Court, Liberty Village
Court, Lumberland Town Court, Mamakating Town Court, Monticello Village
Court, Neversink Town Court, Rockland Town Court, Sullivan County Court,
Thompson Town Court, Tusten Town Court, Woodridge Village Court.
(for Sullivan County
address/phone number directory, click here).
Putnam County, NY
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Adams Corners,
Brewster, Carmel, Cold Spring, Crofts Corners, Garrison, Kent Cliffs, Lake
Carmel, Lake Lincolndale, Lake Mahopac, Lake Peekskill, Lake Secor, Mahopac,
Mahopac Falls, Manitou, Nelsonville, North Highland, Oscawana Lake,
Patterson, Philipstown, Putnam Valley, Sears Corners, Southeast, Tompkins
Corners, Town of Kent Lakes, Town of Southeast, Town of Patterson, Town of
Philipstown, Town of Carmel, Town of Putnam Lakes.
Putnam County, NY - Courts Served:
Brewster
Village Court, Carmel Town Court, Cold Spring Village Court, Kent Town
Court, Nelsonville Village Court, Patterson Town Court, Philipstown Town
Court, Putnam County Court, Putnam Valley Town Court, Southeast Town Court.
(for Putnam County
address/phone number directory,
click here).
Dutchess County, NY
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Amenia,
Arlington,
Beacon,
City of Beacon,
Beekman,
Brinckerhoff,
Clinton,
Crown Heights,
Dover Plains,
Dover,
East Fishkill,
Fairview,
Fishkill,
Fishkill,
Haviland,
Hillside Lake,
Hopewell Junction,
Hyde Park,
La Grange,
Milan,
Millbrook,
Millerton,
Myers Corner,
North East,
Pawling,
Pawling,
Pine Plains,
Pleasant Valley,
Poughkeepsie,
Red Hook,
Red Hook,
Red Oaks Mill,
Rhinebeck,
Rhinebeck,
Spackenkill,
Staatsburg,
Stanford,
Tivoli,
Union Vale,
Wappinger,
Wappingers Falls,
Washington,
Town of Amenia,
Town of Beekman, Town of
Clinton, Town of
Dover, Town of
East Fishkill,
Town of
Fishkill,
Village of
Fishkill,
Town of
Hyde Park,
Town of
LaGrange,
Town of
Milan,
Town of
Millbrook,
Town of
North
East,
Town of
Pawling,
Village of
Pawling,
Town of
Pine PLains,
Town of
Pleasant Valley,
Town of
Poughkeepsie,
City of Poughkeepsie, Town of
Red Hook,
Village Red Hook,
Town of
RhineBeck,
Village of
Rhinebeck, Town of
Stanford,
Village of
Tivoli,
Village of
Union Vale,
Town of
Wappinger,
Willage of
Wappingers Falls,
Town of
Washington.
Dutchess County, NY - Courts Served:
Amenia
Town Court, Beacon City Court, Beekman Town Court, Clinton Town Court, Dover
Town Court, Dutchess County Court, East Fishkill Town Court, Fishkill Town
Court, Fishkill Village Court, Hyde Park Town Court, LaGrange Town Court,
Milan Town Court, Millbrook Village Court, Millerton Village Court, North
East Town Court, Pawling Town Court, Pawling Village Court, Pine Plains Town
Court, Pleasant Valley Town Court, Poughkeepsie City Court, Poughkeepsie
Town Court, Red Hook Town Court, Red Hook Village Court, Rhinebeck Town
Court, Rhinebeck Village Court, Stanford Town Court, Tivoli Village Court,
Union Vale Town Court, Wappinger Town Court, Wappingers Falls Village Court,
Washington Town Court.
(for Dutchess County
address/phone number directory,
click here).
Rockland County, NY
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Town of Clarkstown, Town
of Haverstraw, Town of Orangetown, Town of Ramapo, Town of Stony Point,
Upper Nyack, Nyack, Pomona, Haverstraw, West Haverstraw, Grand View,
Piermont, South Nyack, Airmont, Chestnut Ridge, Hillburn, Kaser, New
Hempstead, New Square, Montibello, Sloatsburg, Spring Valley, Suffern,
Wesley Hills.
Rockland County, NY - Courts Served:
Airmont
Village Court, Chestnut Ridge Village Court, Clarkstown Town Court, Grand
View-On-Hudson Village Court, Haverstraw Town Court, Haverstraw Village
Court, Hillburn Village Court, New Square Village Court, Nyack Village
Court, Orangetown Town Court, Piermont Village Court, Ramapo Town Court,
Rockland County Court, Rockland County Supreme Court - Criminal Term,
Sloatsburg Village Court, South Nyack Village Court, Spring Valley Village
Court, Stony Point Town Court, Suffern Village Court, Upper Nyack Village
Court, Wesley Hills Village Court, West Haverstraw Village Court.
(for Rockland County
address/phone number directory, click here).
Westchester County, NY
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Village
of Ardsley, Town of Bedford, Town of Briarcliff, Village of Bronxville,
Village of Buchanan, Town of Courtlandt, Town of Croton-On-Hudson, Village
of Dobbs Ferry, Town of Eastchester, Village of Elmsford, Town of Greenburgh,
Town of Harrison, Village of Hastings-on-Hudson, Village of Irvington,
Village of Larchmont Village, Town of Lewisboro, Town of Mamaroneck, Village
of Mamaroneck, Mount Kisco, Town of Mount Pleasant, City of Mount Vernon,
Town of New Castle, City of New Rochelle, Town of North Castle, Town of
North Salem, Town of Ossining, Village of Ossining, City of Peekskill, Town
of Pelham, Village of Pleasantville, Village of Port Chester, Town of Pound
Ridge, City of Rye, Town of Rye, Village of Scarsdale Village, Village of
Sleepy Hollow, Town of Somers, Village of Tarrytown, Village of Tuckahoe,
County of Westchester, City of White Plains, City of Yonkers, Town of
Yorktown
Westchester County, NY - Courts Served:
Ardsley
Village Court, Bedford Town Court, Briarcliff Manor Town Court, Bronxville
Village Court, Buchanan Village Court, Cortlandt Town Court,
Croton-On-Hudson Town Court, Dobbs Ferry Village Court, Eastchester Town
Court, Elmsford Village Court, Greenburgh Town Court, Harrison Town Court,
Hastings-on-Hudson Village Court, Irvington Village Court, Larchmont Village
Court, Lewisboro Town Court, Mamaroneck Town Court, Mamaroneck Village
Court, Mount Kisco Justice Court, Mount Pleasant Town Court, Mount Vernon
City Court, New Castle Town Court, New Rochelle City Court, North Castle
Town Court, North Salem Town Court, Ossining Town Court, Ossining Village
Court, Peekskill City Court, Pelham Town Court, Pleasantville Village Court,
Port Chester Village Court, Pound Ridge Town Court, Rye City Court, Rye Town
Court, Scarsdale Village Court, Sleepy Hollow Village Court, Somers Town
Court, Tarrytown Village Court, Tuckahoe Village Court, Westchester County
Court, White Plains City Court, Yonkers City Court, Yorktown Town Court.
(for Westchester
County address/phone number directory, click here).
Columbia County, NY
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Ancram
Town Court, Austerlitz Town Court, Canaan Town Court, Chatham Town Court,
Chatham Village Court, Claverack Town Court, Clermont Town Court, Columbia
County Court, Copake Town Court, Gallatin Town Court, Germantown Town Court,
Ghent Town Court, Greenport Town Court, Hillsdale Town Court, Hudson City
Court, Kinderhook Town Court, Kinderhook Village Court, Livingston Town
Court, New Lebanon Town Court, Philmont Village Court, Stockport Town Court,
Stuyvesant Town Court, Taghkanic Town Court, Valatie Village Court.
Greene County, NY
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Ashland
Town Court, Athens Town Court, Athens Village Court, Cairo Town Court,
Catskill Town Court, Catskill Village Court, Coxsackie Town Court, Durham
Town Court, Greene County Court, Greenville Town Court, Halcott Town Court,
Hunter Town Court, Jewett Town Court, Lexington Town Court, New Baltimore
Town Court, Prattsville Town Court, Tannersville Village Court, Windham Town
Court. (for
Westchester County address/phone number directory, click here).
Highways With
High Intensity NYS State Police Activity
NYS
Thruway, I-87, I-84, Route 17, Taconic
Parkway, Palisades Parkway, Route 209,
Route 28, Route 6.
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If you would like a
consultation or wish to arrange for representation on any Social Security
matter, criminal matter, drawing up a living will, testamentary will, trust and
estate planning or health care proxy, you can contact Glenn W. Magnell at either
his Goshen or Cornwall offices.
Goshen Office:
162 Main Street, Goshen, N.Y. 10924
Phone:
845-294-0585
Fax:
888-724-5470 (toll free)
Cornwall Office:
151 Continental Road, Cornwall,
N.Y. 12518
Phone:
845-725-7935
Fax:
888-724-5470(toll
free)
Email:
gmagnell@midvalleylaw.com
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Click here for Goshen
Click
here for Cornwall
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