New York DWI laws (also known elsewhere as “DUI” laws), can be prosecuted under two different legal theories. Under the first one, a person can be prosecuted for violating the “per se” law, which is based on the alcohol content in the blood at the time that the motorist was driving. In New York State, a person will be accused of violating the “per se” DWI law if he or she drives with a blood alcohol content (“BAC”) of .08% or higher. Under the second theory, a person can be prosecuted under the traditional “common law” if, based on all of the evidence gathered in the course of the investigation and arrest, the investigating officer feels that driver was “intoxicated.”
If you’ve given a breath or blood sample for the police to measure your BAC, you will be prosecuted under both theories. If not, you will be prosecuted under only the “common law” theory. When a person is prosecuted under the “common law” theory, measurement of that person’s BAC is not required. The motorist may be arrested and prosecuted based solely on the observations and opinions of the investigating officer(s).
In New York State, a person may also be arrested if the police officer feels that the motorist’s ability to drive has been “impaired” by alcohol. This is a lesser charge than DWI called Driving While Ability Impaired by Alcohol (“DWAI”), and generally carries with it somewhat lesser consequences than DWI.
Under New York State law, the word “impaired” means that a motorist’s “physical and mental abilities” necessary to operate a vehicle in a “reasonable and prudent manner” have been “actually impaired, to any extent,” by alcohol. The word “intoxicated,” however, refers to a motorist who alcohol has rendered physically and mentally “incapable” of driving a vehicle in a “reasonable and prudent manner.” The quotes from the preceding sentences come from the case of People v. Cruz (48 N.Y.2d 419, 423 N.Y.S.2d 625, 399 N.E.2d 513 [1979]), which is the case widely accepted in New York State to have solidified the definitions of these terms as they are applied today.
“Aggravated” DWI, which is a new, “per se” DWI law, results in harsher penalties than the “common law” and standard “per se” DWI laws. A person will be accused of Aggravated DWI when he or she drives with a BAC level of .18% or higher.
New York Miranda Warning
If you are arrested for a DWI it is critical that you were provided your Miranda Warnings by the arresting officer before any incriminating statements were made. Your DWI attorney will determine whether any Miranda Warnings were provided, and if they were provided in a legally sufficient manner. If not, some or all of your statements could be prevented from use against you in court, which could result in a reduction or dismissal of your charges.
After being placed under arrest, police officers are required to inform you of what is known as the “Miranda Warnings.” These warnings must be given to suspects in police custody before they are asked questions relating to the suspected offense.
Basic “pedigree” information such as your name, address and date of birth may be requested from you by the police without first providing Miranda Warnings. However, if you are “in custody” as a matter of law and a police officer’s conduct causes you to admit to various aspects of an offense without first providing the Miranda Warnings, these admissions (also called “statements” or “confessions”) will not be admissible against you in court.
The typical Miranda Warnings are as follows: You have the right to remain silent. If you give up that right, anything you say can and will be used against you in a court of law. You have the right to an attorney and to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed to you at no cost.
While the Miranda Warnings are an essential part of an officer’s arrest process, reciting them, in and of themselves, may not provide sufficient legal protection or instruction to the arrestee. Many people have different education levels and therefore may not fully understand what the officer is saying. Others may need the information to be translated into their native language.
Therefore, it is the duty of the officer to make sure the suspect understands what is being told to him or her. The officer may have to “translate” the Miranda Warnings to accommodate the suspect’s level of understanding or find another officer who can.
New York DWI Implied Consent
The day you obtained your driver’s license you had to fill out paperwork. During the excitement of that day, you signed a statement agreeing that if you were arrested for DWI, you would submit to a chemical test to determine your BAC or blood drug content. Most states other than New York also follow this procedure. As a result, by merely operating a motor vehicle on the public highways of New York State , all motorist are presumed to have given “Implied Consent” for BAC testing. If an officer asks you to take a blood, breath or urine test, you are legally obligated to submit or you may face harsh penalties.
Notwithstanding that every motorist automatically gives “Implied Consent” for such testing, police officers must, under most circumstances, read the motorist what are commonly called “Implied Consent” Warnings (or “Refusal Warnings”) before a refusal to submit to such a test can be used against the motorist in court or as a basis to take away the motorist’s driving privileges. If a motorist is asked to take such a test and refuses, the officer must then read the Warnings. After being read these Warnings, each motorist is asked again to submit a blood, urine or breath sample for testing. If the motorist refuses again, the refusal can be used against that motorist as evidence of a “guilty conscience” (i.e., that the motorist chose not to submit because he or she knew that the test result would provide evidence of guilt).
Depending on the particular circumstances of your case and criminal or DWI history, it may or may not be a good idea to submit a sample for testing. The decision is a critical one, and in almost all circumstances the motorist under arrest will not have sufficient knowledge or experience to make the best choice for his or her case.
The New York State DWI laws are somewhat unique insofar as a motorist has a “qualified right” to consult with an attorney before deciding whether to refuse or to submit a sample for chemical testing. The right is deemed “qualified” because, though the motorist has the right to call or consult with an attorney, the police do not have to wait for an attorney’s arrival or allow the motorist to seek legal advice if the act of contacting an attorney unreasonably obstructs the arrest and investigative process.
Experienced and knowledgeable New York State DWI attorneys expect taking late night calls as a part of their jobs. Speaking with an attorney is critical because taking or refusing to take a chemical test will result in consequences which could have a devastating effect on your life and DWI case.
New York State DWI Zero Tolerance Law
Are you under 21 years old? An introduction to New York State’s Zero Tolerance Law:
The Zero Tolerance Law applies to a person under age 21 who operates a motor vehicle with a BAC of not less than .02%, nor more than .07%, regardless of whether or not the person is legally “impaired” at all.
If you are pulled over in your car by a police officer, and then the police officer determines that you are under 21 and have consumed alcohol, you will be temporarily detained for the purpose of taking a breathalyzer test to determine your BAC level. This usually occurs at the police station.
With a BAC level of not less than .02% nor more than .05%, you will not be charged with DWI, but you will be referred to the DMV to determine whether or not your license should be suspended for violating the Zero Tolerance Law. You will be provided with a notice to appear for a hearing before an administrative law judge of the Department of Motor Vehicles. It’s during this hearing that a police officer must prove that there was a lawful vehicle stop, that you were driving the vehicle, that you were under 21 at the time of the offense, that the request to take a BAC test was proper, that the BAC test was correctly administered, and that either your BAC was .02% or more at the time of driving or that you refused the breath test.
After testimony is taken from the police officers involved, and then from you (if you wish, but you are not required to testify) and/or your witnesses, the administrative law judge decides whether or not a Zero Tolerance violation occurred, and if a refusal occurred (if applicable). If such findings are made, you will lose your license. For a first-time Zero Tolerance violation, you will lose your license for six months. If you are under 21 and refused a breathalyzer test, your license will be revoked for at least one year. At the very least, you will also have to pay various civil fees to the DMV before you are granted back your driving privileges.
With a BAC level of more than .05% but less than .08%, the police will have the option of charging you with DWAI and “common law” DWI. With a BAC level of more than than .08%, you will be charged with a DWI “per se” and “common law” DWI. In such a case, you will be summoned to appear in criminal court for these charges. If you are convicted of DWI or DWAI and were under 21 years old at the time of committing the offense, you will lose your license for at least one year.