Q: Am I required to take a "breath test"?
Q: What happens if I refuse the "breath test"?
A: If you elect to refuse the breath test, you will likely be charged with the criminal offense of Driving While Intoxicated (DWI). In addition to the criminal charge, you will be subject to an administrative proceeding at the Department of Motor Vehicles (DMV). A hearing will be held to determine whether your refusal was knowing and voluntary. If the DMV Administrative Law Judge determines that your refusal was knowing and voluntary, your license will be revoked for a period of at least one year regardless of the ultimate outcome of DWI charge in criminal court. There will also be a fine imposed for the refusal.
Q: Can I lose the DMV hearing and win the criminal case?
A: Absolutely. First, it should be noted, the standard of proof at the DMV hearing (preponderance of the evidence) is lower than the standard of proof required in criminal court (beyond a reasonable doubt). The sole issue to be determined at the DMV hearing is whether your refusal was knowing and voluntary. Believe it or not, at the DMV hearing, it is irrelevant whether you were in fact intoxicated or impaired. On the other hand, in criminal court, the prosecutor is required to prove intoxication or impairment. Without a blood alcohol content (BAC) level, a jury may reasonably conclude that you were not intoxicated or impaired. Accordingly, despite losing at the DMV, you can be acquitted on the criminal offense of DWI.
Q: Should I take the "breath test"?
A: This is the most common question asked of an attorney who handles DWI cases. Unfortunately, there is no cut and dry answer to fit all circumstances. Here are some things to consider when deciding whether to take the test:
If the answer to any of these questions is "yes", you may want to refuse the "breath test"; however, keep in mind, the breath test may actually prove you are UNDER the legal limit of 0.06% BAC.
Q: What is the difference between Driving While Intoxicated (DWI) and Driving While Ability Impaired (DWAI)?
A: A first offense Driving While Intoxicated (DWI) is a misdemeanor resulting in a permanent criminal record. A first offense Driving While Ability Impaired (DWAI) by alcohol is a traffic violation and will not result in a criminal record. Alternatively, a first offense Driving While Ability Impaired (DWAI) by drugs is a misdemeanor resulting in a permanent criminal record.
Q: What is the legal BAC limits in New York?
A: The following is a general summary of the BAC limits:
Q: Can I be charged and/or convicted of DWI without a blood alcohol content (BAC) reading?
A: Yes. Without a BAC reading, the police officer must rely upon his or her observations. Specifically, the police will look for clues of intoxication such as odor of alcohol, unsteadiness, slurred speech and bloodshot eyes. Further, the police officer will usually ask a motorist to perform a series of standardized field sobriety tests (HGN, Walk and Turn, One Leg Stand, etc.) to further evaluate a motorist for intoxication. At trial, the police officer will testify about his or her observations and let the jury determine whether or not intoxication is supported by the evidence.
Q: Can I be charged and/or convicted of a DWAI by drugs if I am taking legally prescribed medications?
A: Yes. A motorist may not lawfully operate a motor vehicle when that person’s consumption of alcohol or a drug (legal or illegal) has actually impaired, to any extent, the physical and mental abilities which such person is expected to possess in order to operate a vehicle as a reasonable and prudent driver.
Q: If convicted of DWI, will I have a criminal record?
A: Yes. A first offense DWI is an unclassified misdemeanor which is a crime. Any additional DWI charges within a ten (10) year time period results in a felony DWI charge. However, if you are convicted of Driving While Ability Impaired (DWAI), you will not have a criminal conviction.
Q: What are the penalties for alcohol and drug related driving convictions?
A: The penalties for DWI and other related convictions depend upon the circumstances of the offense. Here is a general summary of the potential penalties for DWI related convictions. Recently, New York State enacted legislation which permits permanent license revocation for offenders with multiple DWI convictions.
Q: What is a conditional license?
A: A conditional license is a limited use license that permits a motorist to drive to and from specified locations while their license is under suspension or revocation. Generally, the conditional license will permit a motorist to drive to and from work, school and doctor appointments. A conditional license is issued by the DMV, not the court.
Q: What is the difference between a "pre plea" conditional license and a "post plea" conditional license?
A: In most DWI cases, your license will be temporarily suspended following arrest. This suspension will remain in effect until the DWI case is resolved. This is called a "pending prosecution" suspension. If eligible, a "pre plea" conditional license will permit a motorist to drive while the DWI case is pending. If the criminal case is resolved with a DWI or DWAI plea or conviction, your license will be suspended or revoked. If eligible, a "post plea" conditional license will permit a motorist to drive during the period of suspension or revocation.
Q: What is a hardship license?
A: A hardship license is a limited use license that permits a motorist to drive to and from specified locations while their license is under suspension. Similar to the conditional license, the hardship license will permit a motorist to drive to work, school and doctor's appointments; however, the hardship license is much more limited in scope in that a motorist must spell out the exact commute times and locations. This condition renders the hardship license useless for motorists without a fixed schedule at a fixed location. Further, the ability to get a hardship license rests with the criminal court judge who will only issue the license if an extreme hardship exists.
Q: Can I get a conditional license?
A: If it is a first DWI offense and you did not refuse to take the "breath test", you will likely be eligible for a "pre plea" conditional license thirty (30) days after your arrest. During that 30 day period, a judge may agree to grant you a hardship license. Following a conviction for DWI and other related offenses, you may be eligible for a "post plea" conditional license. There are many factors that determine eligibility for a post plea conditional license i.e. the BAC level, the number of prior offenses and evidence of alcohol/drug abuse.
Q: Can I get a conditional license if I refuse the "breath test"?
A: Generally, you cannot get a conditional license if you refuse the "breath test" until the criminal case is resolved. If necessary, once the criminal court case is resolved, you may be eligible for a post plea conditional license.
Q: What happens to my car if I am charged with DWI?
A: The answer to this question depends upon the county you are in when you get arrested for DWI. Many counties have enacted laws that permit it to seize (take) and ultimately forfeit (keep) your car if you are arrested for DWI. Usually, the county will not seize or forfeit a vehicle for a first DWI offense although in many cases, it is legally permitted to do so.
Q: How long will a DWI conviction stay on my record?
A: New York State does not have an "expungement statute" therefore a criminal conviction will likely stay on your record forever.
Q: Will I need to install an ignition interlock device on my vehicle after a DWI conviction?
A: Yes. Under New York State law, every individual convicted of a DWI must install an ignition interlock device on any vehicle he or she owns or operates for a minimum of six (6) months after the conviction.
Q: Will my case go to trial?
A: Maybe. After being charged with DWI, your attorney will carefully evaluate your case and discuss with you the risks and benefits of going to trial. Oftentimes, attempts will be made to negotiate a plea which avoids the most serious consequences of a DWI charge such as a permanent criminal record, jail and/or probation. Your attorney will also seek to minimize the fines and the license suspension/revocation period. Unfortunately, a fair and favorable plea bargain cannot always be negotiated. Under those circumstances, your case will likely go to trial.
Q: Do I need an attorney?
A: Yes. DWI is a very serious offense with long lasting ramifications. Navigating your way through a DWI is complicated with many nuances, even for the most experienced attorneys in the field. Therefore, it is highly advisable that you consult with an attorney who has handled many DWI and other related cases.
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