The New York DWI Guide was created by Chiacchia & Fleming to help those who have been arrested for drunk driving. Call today if you were charged with DWI.
If you drink or do drugs, you do so at your own risk. However, if you drink and then decide to get behind the wheel of a car, you are actively endangering not only your own safety but also that of every other driver and passenger on the road. Having drugs or a significant amount of alcohol in your system while driving is a criminal offense, and the possibility of causing an accident far outweighs the minor inconveniences of choosing to wait or even forgo alcohol entirely.
When a police officer pulls you over and charges you for DWI or DWAI, there can be severe legal consequences. If you believe you were falsely charged, there are legal steps to be taken that can remove the charge. However, if you are guilty, you jeopardize your ability to ever be able to drive again. An attorney’s guidance can steer you around many of the legal hurdles that can emerge when you are facing a New York DWI or DWAI charge, and counsel from one of our experienced Buffalo DWI Attorneys can prepare you for what to expect as you fight or comply with the consequences for these offenses.
What to Do if You Are Pulled Over for a New York DWI
Steps to Take if You Are Pulled Over For New York DWI
Once you are pulled over by a police officer who starts asking you questions about whether or not you have been drinking, you can be sure that an arrest is imminent. You might not be officially under arrest yet, but it is essential that you think carefully about what you say and do; all of your words and actions could be used against you at a later point. Be polite, respectful, and cooperative. Keep in mind that police officers are trying to keep our community safe, and they do not need drivers to make their jobs more difficult.
Driving Under the Influence of Drugs in New York State
With the legalization of marijuana in certain states and the increase in opiate medication intake, a frequent question is whether drivers who have consumed either substance can be arrested as if they were driving while intoxicated. It is perfectly legal to be pulled over for ingesting marijuana or another opiate, and although this is not the same as driving while intoxicated per se, driving after taking an opium-derived drug is considered driving while one’s ability to operate a motor vehicle is under the influence of drugs.
The charge carries a similar penalty as the misdemeanor DWI for driving under the influence of alcohol. Those charged with a DWAI-Drug may face fines as well as jail time, and there may be adverse consequences to their driver’s licenses. If an officer pulls you over and finds that you are under the influence of any kind of drug—whether it be an illicit substance such as marijuana or a legitimately prescribed drug—to the extent that your ability to drive your motor vehicle is impaired, you can be charged with a crime.
What Constitutes Probable Cause?
A common concern is that an officer may not have had the right to pull over a driver, much less to make an arrest. The fact is that, in order for an officer to pull a moving vehicle over, the officer must have a reasonable suspicion that a Vehicle and Traffic Law violation has occurred. What does that entail? Here is an example.
Years ago, we handled a case involving an individual who veered outside his lane to avoid a pothole. We were able to establish this fact because we got involved early and took some photographs of the roadway. The Vehicle and Traffic Law and some case law state that a driver can legally move outside the traffic lane to avoid obstructions in the roadway and things of that nature. In that case, we got the charge dismissed because we were able to show that there was no reasonable suspicion that any Vehicle and Traffic Law violation occurred; the driver had a legitimate reason to move outside of his lane.
Beyond that, an officer must have reasonable cause to believe that a driver is intoxicated. How does the officer prove this? He or she relies on direct observations. Is there the smell of alcohol? Are the driver’s eyes bloodshot and watery? Is the driver’s speech slurred? Is coordination impaired? If you are pulled over, an officer may ask you to perform certain maneuvers called field sobriety tests. The officer may ask you to recite the ABCs, count on your fingers (1-2-3-4, 4-3-2-1), walk a straight line, stand on one foot, touch your finger to your nose with your eyes closed, or count backwards. If the officer believes you were unable to perform those tests satisfactorily, he or she may consider that there are additional grounds to arrest you for driving while intoxicated.
Many officers ask drivers to stand by the roadside and blow into a pre-screening device, sometimes called an Alco-Sensor. If the device registers positive for alcohol, that is another basis for the officer to make an arrest. If you elect to take the test and pass it, the officer cannot charge you for having an excessive blood-alcohol content in your system. If you blow a reading of 0.08 or higher when submitting to the test at the station, that result will be considered probable cause for charging you with DWI for having an excessive amount of alcohol in your blood.
Can I Refuse a Field Sobriety Test?
You are not required to take a field sobriety test, but you always want to be cooperative and compliant. You should keep in mind the fact that, once an officer stops you and asks you to get out of your car, you are going to be arrested. At that point, whatever the officer asks you to do in terms of a field sobriety test provides evidence that can be used against you in a criminal prosecution. Be polite and deferential, but do not be afraid to refuse to do anything if you do not think the results will be in your best interest.
Many people decide to refuse the breath test. In that case, these drivers actually create two separate proceedings: one will be in front of an administrative law judge in the state’s DMV courts, and the second will be heard in the original court where the drivers are charged. For example, if a driver were charged in the Hamburg Town Court, he or she would be arraigned there and would plead guilty or not guilty. At that point, the judge would have to confiscate the driver’s license pending a hearing at the Department of Motor Vehicles, which must be scheduled within 15 days of the arraignment. At that hearing, if our firm can find a valid reason to have the case adjourned, driving privileges may be reinstated, depending on the circumstances.
If you refuse the test, you may be without driving privileges until your case is resolved in the town court. Only after your case is resolved there can you get conditional driving privileges. We advise our clients to not take the test because, in doing so, they may provide evidence that puts them in a DWI category with greater consequences. Even though they may incur other punishments related to their licenses, our ultimate goal is to keep them out of jail, and taking a test and blowing a high number may be counterproductive.
What if the Police Never Read My Miranda Rights?
In situations in which an officer did not read the Miranda Rights, the penalty is simply that any statements made to the police officers after the rights should have been read are not admissible. Once the officer’s initial investigatory questioning makes it apparent that he or she will be making an arrest, the officer must read the DWI and Miranda warnings. The Miranda warnings state that a driver has the right to remain silent. If the officer continues to question a driver without reading the Miranda Rights, even after he or she has established reasonable cause to make an arrest, any statements made to that officer may be subject to a motion to suppress, rendering them not usable at trial.
What if I Received a DWI While I Was in a Non-Moving Vehicle?
People can be arrested for a New York DWI if they are merely sitting in their cars. If independent witnesses report that a driver was recently driving erratically, there is a chance that an officer who arrives within a reasonable time after that complaint is filed can still charge the driver with driving while intoxicated, regardless of whether the driver’s car is in motion.
On the other hand, it is not illegal for a person to sit in her or his car—even if the car is running—and fall asleep for a while. That does not mean that the person is driving while intoxicated, and we have been successful in getting such cases dismissed. The officer may accuse the driver of driving, but the driver can simply respond that he or she was trying to sleep off the intoxication. In those circumstances, drivers may be acquitted of the charges. However, just because a car is not moving or even running, it does not mean that the driver cannot be charged.
Can I Receive a DWI While Driving a Boat?
Boating while intoxicated has been somewhat more prevalent of late, resulting in more law enforcement presence on lakes and the rivers. Boats are like motorcycles in that, when an accident occurs, the passengers in the boats can sustain grave injuries. It is important to be aware that you can get a New York DWI while driving a boat, and some of the same penalties that apply to driving an automobile also apply to boaters. You can end up in jail and may face sanctions against your regular driver’s license. Boating while intoxicated is a real charge with real consequences.
New York DWI Penalties
Today’s DWI penalties can be quite severe. If your first offense is reduced to a driving while ability impaired, there will be a minimum fine of $300 that could rise to a maximum of $500, and there is a $260 surcharge on top of that. There will also be a 90-day loss of your license and a requirement to attend a Drinking and Driving program at a cost of about $225—plus $75 for a conditional license. There will then be a $50 license suspension termination fee. After that, the DMV will surcharge you $250 per year for three years. If you are required to go to counseling on top of the Drinking and Driving Program, also known as the Impaired Driving Program, you will be mandated to pay for that.
Your license will be suspended for 90 days. For your first offense, you can obtain a conditional license, which will grant you permission to drive to and from work and fulfill medical obligations. You will also be permitted three hours on weekends to run errands. Beyond that, you will be restricted, and if you were to be caught driving outside of your restrictions, you would face additional charges.
If you are convicted of a misdemeanor DWI, the penalties can vary. A regular New York DWI will result in a $500 to $1,000 fine and a $400 surcharge. For an aggravated DWI, the fine will be between $1,000 and $2,500, with a $400 surcharge. Regardless of the type of misdemeanor, you will face up to three years of probation or up to a year in jail. Additionally, both types of misdemeanor will require you to have an ignition interlock device installed in your car. Every time you want to operate your vehicle, you will have to blow into the device to prove you have not consumed alcohol.
License revocations are a little different. A revocation will last for six months for a regular DWI or one year for an aggravated DWI. You will be eligible for a restricted, conditional license after you are convicted, and that conditional license would allow you to drive throughout the revocation period as long as you completed the Impaired Driving Program and followed any other terms and conditions that the court deemed appropriate for your sentencing.
Will I Go to Jail if Convicted of a DWI in New York?
New York DWI is a serious offense, and jail time is possible. In fact, jail time is called for in the statute if you are convicted. However, the court will consider several factors before throwing you into jail. It is unusual for people who are convicted of driving while intoxicated for the first time to be put into jail absent aggravating circumstances, such as a severe accident or substantial injuries to people or property.
How Many Points Go on My License from a DWI?
No points appear on a driver’s license following a New York DWI charge; DWI is considered an unclassified misdemeanor under the Vehicle and Traffic Law. While being charged with driving while intoxicated is a crime in the State of New York, the penalties that come with the charge take a form other than points. You will face possible jail time, license suspension penalties, and a profusion of fines and fees, but there will be no points added to your license at all.
Will I Lose My License From a DWI?
When you appear in front of the judge at your arraignment, the judge must take your license if you took the Breathalyzer test and blew greater than 0.08. In that case, the only option you will have would be hardship driving privileges, which are restrictive. You would be allowed to drive back and forth to work while in possession of a hardship license, but you could not drove during work. If you refused the breath test, the judge must take your license immediately, with no driving privileges.
Within 15 days after your arraignment, you will go to the Department of Motor Vehicles for a refusal hearing. We will appear before an administrative law judge and, if we are able to have that hearing adjourned, we may be able to get some of your driving privileges restored. A hearing can be adjourned for various reasons, such as failure of the officer to appear or the need for more time to investigate a case. If we are successful in adjourning the hearing, we may be able to resolve your case before we have to deal with the refusal hearing a second time.
You will temporarily lose your license. If it is your first offense, you can get a conditional license once you have been convicted. If you have multiple DWIs, however, especially within the five years prior to your conviction, there will be no conditional driving privileges. That five-year period runs from the date of your prior conviction or the date at which your license was restored to the date of your current offense.
What Are the Penalties for a Third DWI in New York?
If you incur a third DWI charge within 25 years, you will face some truly draconian administrative penalties. Under new DMV regulations, if you have accumulated multiple convictions, the DMV will impose its new rule which, although not court-sanctioned, states that if you have three alcohol convictions within 25 years and your most recent conviction results in revocation of your license, you will lose your license for at least 5 years. Once your driving privileges are restored, you will have to install an ignition interlock device in your car and keep it in place for another five years, which can be quite expensive. It costs $200 for an ignition interlock device to be installed and $100 a month for maintenance Sometimes, if a driver has three convictions within eight or ten years, the DMV can impose a lifetime ban. In terms of severity, New York State’s punishments for these types of convictions are steadily becoming more closely aligned with those of other states.
On top of that, you must also deal with criminal prosecution. If your third DWI occurs within ten years of a previous one, and that prior New York DWI was a misdemeanor, the current one will carry a felony charge. If you had no valid license at the time you were charged with that third DWI due to a previous DWI or DWAI, and your license has not yet been restored, you can be charged with felony-aggravated unlicensed operation.
Depending on the timing of these events, you could be charged with an E or D felony and face four to seven years of state prison time. Some judges do send people to state prison for multiple DWI offenses. DWIs are taken seriously in the courts and by our legislature, and drivers must be aware of this fact.
What if I Have a Commercial Driver’s License?
Even though someone with a commercial driver’s license (CDL) may be entitled to get a conditional license, he or she will not be granted conditional driving privileges for the CDL. If you are arrested for a New York DWI and you drive a CDL vehicle for a living, there is no way to continue driving your CDL vehicle until your regular driving privileges are restored. You may plead guilty to driving while ability impaired, which only carries a 90-day suspension of your license; however, the DMV will extend your CDL suspension for an entire year. If you hold a CDL, drinking and driving could eliminate your ability to earn a living.
Do I Need a Lawyer for a DWI in New York?
If you receive a New York DWI charge, you have been charged with a crime. This is not a parking ticket, and it is not a moving violation; you are responsible for a crime, and jail time is possible. Serious criminal and collateral consequences are in play, and they can affect your liberty and any professional licenses you may hold. Your ability to travel to and from Canada may be compromised, and your ability to drive during the pendency of the entire proceeding may be restricted. You absolutely want to retain counsel for your New York DWI charge.
What Is Leandra’s Law?
New York State passed Leandra’s Law in 2009 in response to the death of an 11-year-old girl who was killed in a drunk driving accident. This law is a child protection legislation designed to protect child passengers, and it states, in essence, that if an adult is caught drinking and driving with a blood-alcohol content in excess of 0.08% and any occupant in the vehicle is aged 15 years or younger, the driver will automatically be charged with a felony.
The true purpose of Leandra’s Law is to impose more severe penalties on people who feel comfortable driving a car with young children as passengers after drinking enough alcohol to exceed the legal limit. Children must be protected. Driving your family home after you have had a few drinks might result in automatic felony charges.
Plea Bargaining a DWI in New York
If your blood alcohol content is less than the required level, absent any aggravating circumstances, you could get your charge plea bargained down to a charge such as driving while ability impaired. Pleas are sometimes offered on aggravated DWIs, such as one in which your blood alcohol content is 0.18 or above. A court may offer to allow you to plead to a lesser, regular DWI. Again, that decision is based on A case’s specific facts and circumstances, such as whether there was an accident, how high the test results are, and related elements.
Drug Recognition Experts
When you are stopped by an officer who thinks that you are under the influence of or impaired by drugs, the officer may not have the training or experience to make that call on her or his own. In that case, the officer can call for the assistance of a drug recognition expert, a police officer who has undergone specific training and certification through New York State as and works for a police agency. That drug recognition expert can indicate whether if you are impaired by drugs at the time of your evaluation.
Traveling After a New York DWI Conviction
A conditional license is a license that the court will grant after you are convicted of either a DWI or a DWAI. This type of license will allow you to drive during the term of your suspension. If you are convicted of a DWI, your license will be suspended for six months. If you are convicted of a DWAI, your license will be suspended for 90 days. In either case, you cannot drive during the suspension unless the court grants a conditional license.
The conditional license allows you to drive to and from work, school, and doctor’s appointments. There is also a block of time during the week during which you can take care of miscellaneous driving and errands. To be eligible for the conditional license, however, you must enroll in and participate in the Drinking and Driving Program.
Clients who have been arrested for a New York DWI will be able to drive to and from work, school, or doctor’s appointments while their matter is pending, but only if our firm is able to secure a hardship license at their arraignments. If the officer can provide the court with certified copies of records indicating that a driver took the breath test, the court must suspend the driver’s license, and he or she cannot drive without a hardship license. Although the driver would probably be eligible for a pre-conviction conditional license, this will not take effect for 30 days after the arraignment. It is important if you are arrested for a DWI that you reach out to an attorney right away. Your attorney will gather the appropriate paperwork and submit your application for a hardship privilege at your first appearance.
How Does an Out-of-State DWI Affect a New York Driver?
If the New York State Department of Motor Vehicles learns that you were convicted of an alcohol-related driving offense in another state as a holder of a New York State driver’s license, the DMVs in both New York State and the other state can both take action against you. If you are over 21 years of age, the New York State DMV can also impose its own suspension or revocation period. More important, there is a potential adverse impact of the Assistant District Attorney’s Office learning of a prior alcohol-related driving conviction in another state: this prior conviction can be used as a predicate offense in prosecuting you for your current offense here in New York. This means that your prior offense counts as a strike against you, and it can be used against you if you get caught drinking and driving in New York State.
How Long Does a DWI Stay on My Record in New York?
New York State’s Department of Motor Vehicles maintains a lifetime record of offenses for each motorist. A driving while intoxicated conviction from 20 years ago may not appear on your driver’s abstract when you pull it for a speeding ticket, but the reality is that the DMV maintains permanent lifetime records for each motorist, and a New York DWI will stay on your record forever.
Can I Go to Canada With a New York DWI or a DUI?
Canada is a common tourist destination for residents of Western New York. Unfortunately, if you have been convicted of an alcohol-related driving offense here in New York, your ability to cross into Canada might be hindered. Canadian border officials are empowered to exercise discretion as to whether to let people enter Canada. Because that decision is left to the individual officers’ discretion, you cannot count on being permitted to cross the border. Alcohol-related driving offenses are serious, and border officials routinely use them as potential bases for denying entry into their country. For that reason, before you book a flight out of Toronto or decide to go for a holiday party in the summer in Canada, you should be aware that you may not be allowed to cross the border.
You can take certain measures to guarantee entry into Canada even if you have an alcohol-related driving offense on your record. One such tactic is to apply for a temporary resident permit, which is limited to a finite period and requires you to have a valid reason to enter Canada. The other, more permanent solution requires you to file a certificate for rehabilitation which would allow you back and forth through Canada.
In either case, you have to file those documents through the Community and Border Services, and you should consult one of our Buffalo DWI Attorneys to assist you with that process. Otherwise, you will risk being turned away from the border.