1. If I
have been drinking, and I am stopped by a police officer and
questioned, what should I do?
Under New York law, you are not required to answer any
incriminating questions. When questioned by a police officer as
to if you have been drinking, how much you have been drinking,
or where are you coming from or going, a driver should inform
the police officer that he will not answer any questions until
he speaks to his attorney.
2. If the Police Officer asks that I submit to Field Tests, what
should I do?
Under New York law, a motorist is not required to perform
any physical sobriety test. Given that the tests are highly
unreliable as accurate indicators of a person's intoxication,
and given the conditions these tests are administered under,
most people, even if sober, should indicated to the police
officer that they are not answering any questions, or performing
any tests, until they speak to their attorney. The sad fact is
that no matter how well a person does on these tests, the police
almost uniformly state that the person did poorly on the test by
improperly interpreting the results.
3. I was arrested, and the Police Officer did not read me my
Miranda rights.
Can I get the case dismissed?
No, the Police are not required to administer Miranda rights
when you are arrested. Miranda rights in New York are only
required after the person is in custody (i.e., "under
arrest") and the motorist is being questioned in order to
elicit incriminating information. The only consequence of not
being given your Miranda Rights is that the prosecution will not
be able to use your answers to these questions on their case.
4. Should I take the chemical test?
If a person refuses to submit to a chemical test in New
York, their license will be immediately suspended, and
subsequently revoked by the DMV if the motorist does not prevail
at the DMV refusal hearing, notwithstanding the results of the
criminal action.
The decision to take the chemical test is a personal one. Given
the uncertainty of reliability of the breath test equipment
being used, it is understandable that a person would refuse to
submit to the chemical test, even if sober. I have heard many
instances where a person, who only had one or two, ended up
blowing well above the legal limit. But keep in mind that there
are additional penalties for not taking it, and furthermore, a
jury may be instructed that your failure to submit to the test
can be used as evidence against you.
5. My license was suspended at arraignment for failing the
breath test.
What should I do?
Under certain circumstances, you may be able to get your
full license back immediately, or qualify for a restricted use
license. Therefore, it is important that you contact a qualified
lawyer as soon as possible.
6. If I have refused to submit to the chemical test, should I attend the Refusal
hearing?
Yes, on Refusal cases, many jurisdictions do not offer to
plea bargain down the Driving While Intoxicated charges to
Driving While Ability Impaired. Therefore, it is important to be
able to question the police officer at the DMV hearing so as to
lock him into his testimony. This prior testimony can be used to
evaluate the strengths and weaknesses of your case, and can be
used at subsequent pre-trial hearings or trial. Moreover, on
many occasions, a qualified lawyer may be able to get your
license back after the hearing, and on those occasions where the
police officer does not show up, your license will be returned
to you pending the hearing. If you fail to show up, you have
waived your hearing, your license will be revoked, and a civil
penalty imposed. Keep in mind that if you chose to testify at
the DMV Refusal Hearing, anything you say can be used against
you.
7. Should I hire a lawyer?
Yes, many courts will not allow a person to represent
themselves on a criminal charge unless qualified. Driving While
Intoxicated cases are highly complex cases. Therefore, it is
wise to hire an attorney who is experienced in this field to
represent you. A qualified attorney will analyze the case
against you, beginning to end, by reviewing the maintenance
records of the breath test machine, looking for illegalities in
the stop of your car and your arrest, and moving to suppress
evidence against you that was obtained unlawfully. By fully
reviewing the facts of your case, your lawyer can help negotiate
a plea to a lesser charge, if you desire, or take the matter to
trial. In addition, a qualified lawyer can assisted you in
obtaining your conditional license and prepare you for the
Drinking Driving Program.
8. How reliable is breath testing in determining a
person's Blood Alcohol Content?
Based upon the research that has been conducted, breath
testing is not a very reliable in determine a person's true
blood alcohol content. Given that the machines are based upon
assumptions about the individual suspect that may not be true,
breath testing is at best a shot in the dark in determining a
person's accurate blood alcohol content at any given time.
9. If I blew a .10 or more, does that make me guilty of DWI?
No, just because a person blows a .10 or more doesn't make
them automatically guilty of DWI. In order to convict a person
of DWI based upon a reading, the prosecution must prove that at
the time of operation of the vehicle the motorist's Blood
Alcohol Content was .10 or more. In New York, a reading of .10
or more within 2 hours of the motorist's arrest allows a jury to
infer, if they wish, that at the time of operating the motor
vehicle, the driver had a BAC of over .10 or more.
However, there is no requirement that the jury draw this
inference, and they are free to reject this inference, if they
wish, for any reason. Depending upon when a person had finished
their last drink, on many occasions, a person BAC, at the time
of operating the motor vehicle, can be much lower than it is at
the time the test is taken. While a person will only burn off
about .02 an hour on the average, a person can go up more than
.10 an hour. Given that the breath test is usually taken much
later, it is almost impossible to say with any certainty that
the person was .10 or more at the time of operation based upon
one test.
10. Where can I find a qualified lawyer who handles DWI?
Ask around the local court. Most of the court personnel,
legal aid lawyers, or court officers know which lawyers are the
most experienced at handling DWI cases.
For those in the Nassau/Suffolk County area, call my office at
(516) 794-3500 for a free consultation. Also by contacting the
National College For DUI Defense, located in Houston Texas,
(713) 223-1719, or National DWI Defenders Network in Georgia,
(404) 853-5080, one can find some of the leading DWI lawyers in
your area.
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