How Recent Trends In DWI Law Enforcement May Affect You
Identifying changes in law enforcement practices in DUI cases.
IntroductionNew York has some of the toughest Driving While Intoxicated ("DWI") laws in the U.S. and the trend has been to tighten the laws even further. Last year the National Transportation Safety Board recommended lowering the blood alcohol content threshold for intoxication from 0.08 percent to 0.05 percent. See Wald, Matthew., "States Urged to Cut Limit on Alcohol for Drivers", The New York Times, May 15, 2013: page A10. Print Ed. "Blood-alcohol concentration varies by body weight, gender, stomach contents and other factors, but generally speaking, a 180-pound man could consume four beers or glasses of wine in 90 minutes without reaching the current limit [of 0.08 percent]. At a limit of 0.05 percent, he could legally consume only three. A 130-pound woman could probably consume three drinks in 90 minutes and be legal under the existing standard; if the limit were lowered, she could consume only two." Id. Others have called for the expanded or permanent installation of Ignition Interlock Devices ("IID") for DWI first offenders. IID's "are equipped with recording devices that capture the number of times an automobile was started or attempted to be started, the operator's BAC at the time an attempt was made to start the car, and the duration the automobile was driven during the monitoring period." As a criminal defense attorney, I counsel my clients (and anyone else who will listen) to never drink any alcohol, not even a sip, if they plan to get behind the wheel of a motor vehicle. You might think that is an overreaction but the truth is, if you are driving and pulled over for a traffic infraction like speeding or a broken tail light with the scent of alcohol on your breath, you immediately raise the police officer's level of suspicion. That mere whiff of a beer you simply tasted could expose you to a cascade of fast moving events, which may result in you being detained or arrested for the serious crime of drunk driving, which killed 10,322 people (or 31% of all traffic deaths) in the U.S. in 2012.
What you should know.So what should you know about the drunk driving laws in New York to prevent this nightmare from happening to you? Although the drunk driving statutes are rather complicated, there are three general types of "under the influence" driving offenses: (i) driving while intoxicated by alcohol ("DWI") for driving with a blood alcohol content of 0.08% or higher, a misdemeanor punishable by up to a year in jail; (ii) driving while ability impaired by drugs or combination with alcohol, which is also a misdemeanor punishable by up to a year in jail and (iii) driving while ability impaired by alcohol, which is a traffic infraction that prohibits driving with a blood alcohol content of 0.05% to 0.07% and punishable by up to 15 days in jail. All of these offenses involve some form of license suspension and heavy fines, fees, surcharges and other penalties as part of the sentence if convicted. Moreover, if you are under 21 years old, then you can be charged if your blood alcohol content is only 0.02% or higher. If you are convicted of a DWI misdemeanor, that is a crime and in New York and there is no expungement statute so the conviction will stay on your record for the rest of your life. DWI can also be charged as felony punishable by up to four years in prison if you have a previous misdemeanor conviction within the past ten years or are convicted of driving while intoxicated and a child of less than 16 years of age was in the vehicle. Most often when you are arrested for DWI, you are pulled over by a police officer who stopped your vehicle for a traffic infraction like speeding, crossing the double-yellow line, broken tail light, etc. That's because a police officer must have "probable cause" that you are committing a traffic infraction in his presence to stop your vehicle or "reasonable suspicion" that a crime is, was, or is about to be committed. So in some cases, even if the officer encounters you when your vehicle is already stopped, he might have enough information to arrest you for DWI even if he didn't see you driving. But the general rule is the officer has to see you "operating" the motor vehicle, which is minimally defined as the engine being on, keys in the ignition and the driver sitting behind the wheel or near the vehicle. In most cases, after pulling you over for a traffic infraction, the officer will approach the driver's side window and ask for your license and registration. At that point, if the officer smells alcohol and observes other evidence of intoxication like glassy eyes, slurred speech or odd behavior, he can inquire further about your condition. The officer will usually ask if you have been drinking, how much you had to drink, where you are coming from and where you are headed. The answers you give in response to these initial questions will be written down and used against you later. Based on the officer's initial observations of you and questions, if the officer decides that you are either impaired or intoxicated, he will ask you to step out of the vehicle to administer field sobriety tests and a preliminary breath screening test. Depending on the officer and how much training he has, he will ask you to perform a number (usually between 3-6) of physical coordination tests that may include standing on one leg, walking a straight line, reciting the alphabet, touching your finger to nose and following a flashlight with your eyes. If the officer determines that you have failed the tests, he will most likely ask you to take a preliminary breath-screening test by blowing into a small device. These portable tests are designed to register the presence of alcohol on your breath and are not accurate enough to give a precise blood alcohol level. However, if you fail the field sobriety tests and the preliminary breath screening is positive for alcohol, the officer has "probable cause" to arrest you, which means being placed in handcuffs and transported to the police station. Once you are taken into custody, the police are obliged to "read you your rights" also known as Miranda rights. These include the right to remain silent and the right to an attorney at the state's expense if you cannot afford an attorney. Generally, if the police fail to timely apprise you of your Miranda rights upon being taken into custody, some or all of the statements you make to the police may be subject to suppression (deemed inadmissible) so they cannot be used against you later. The initial questioning by the police about whether you have been drinking and how much are considered non-custodial investigatory questions so providing the Miranda rights at that point is usually not required.
Procedures during a DUI arrest.The next step in the procedure of a DWI arrest involves the officer taking your photograph, obtaining your fingerprints and filing out paperwork containing your basic pedigree information and recording the observations he made of you. During this processing, the officer will ask if you wish to take a Breathalyzer test. This is a second breath test that is more accurate than the portable preliminary breath-screening because a Breathalyzer is capable of registering your blood alcohol content as a percentage. As mentioned above, any reading of 0.06% to 0.07% of alcohol means you are considered impaired and a reading of 0.08% of alcohol or higher means you are considered intoxicated. You may refuse a Breathalyzer test and the officer is required by law to tell you what the consequences are for refusing to take a Breathalyzer test. For example, the officer must clearly inform you that if you refuse to take the test, your license will be revoked for a period of at least one year. You have the right to consult with an attorney before taking the test but you should be aware that asking for an attorney to try and delay the test may be deemed as a refusal to take the test. That's because under the law, the officer is generally required to obtain a chemical test result by blood or breath within two hours of your arrest. In rare circumstances, if you refuse the test, the officer can seek a court order to draw your blood. While I cannot give legal advice in this article because every case is different and should be carefully discussed with your attorney, I generally advise clients who are in the process of being arrested to take the test. However, if you have a prior conviction for DWI, an attorney might counsel you to refuse the test if you understand your driving license will be revoked for at least one year. That's because a second DWI conviction within 10 years will be charged as a felony carrying a potential sentence of up to four years in state prison. It should be understood, however, that even if you refuse a Breathalyzer test and the police don't know your blood alcohol content, they can still proceed to trial and prove intoxication or impairment based on observations like the smell of alcohol, how you operated your car, slurred speech, glassy eyes, impaired motor function, your statements admitting to drinking, and any failure of the field sobriety tests. As with any encounter with law enforcement personnel, if you are pulled over, you should be cooperative with the police, do not act belligerently or disrespectfully and follow their instructions for your safety and the safety of the officers. Doing otherwise will only make matters worse and could result in additional charges like resisting arrest. That is not to say you should give up your constitutional rights; if you elect to refuse the Breathalyzer test or assert your right to remain silent for example, you should do so politely and respectfully. If the officer asks to search your vehicle, and you choose not to voluntarily permit that intrusion, politely decline the request for a consensual search. If you request an attorney, do so politely and all further questioning by the police must stop. This applies even if you don't have an attorney because an explicit request for an attorney triggers the Sixth Amendment right to counsel. An explicit request is not asking the officer if you need an attorney; you must specifically state that you want an attorney. So to avoid all this, never even take a sip of alcohol if you are the designated driver or plan on driving. That simple sip of a friend's drink and the resulting lingering smell on your breath can lead to the chain of events generally outlined in this article. If you want to enjoy a glass of wine with your dinner, call a cab, have a designated driver, or just stay home. It's never worth the buzz; it and you could pay the ultimate price and kill yourself or an innocent person.