A DWI arrest is serious, and the charges for DWI and DUI can be complex. It is important that you seek legal counsel right away…
Possible Reasons for the Initial Traffic Stop
Traffic stops are a common starting point for DWI charges, and they generally stem from a few specific scenarios. In addition, when facing a DWI arrest in New York, understanding the reason for the police stopping you can drastically influence your defense strategy.
Simple Traffic Violations
The most common reasons for being pulled over are a broken taillight, some obstruction of view, and tinted windows. In New York, having objects hanging from a rearview mirror can even be enough to be pulled over.
Key Mistakes to Avoid Following a DWI Arrest
Many people inadvertently make critical errors during and after their arrest without understanding the legal ramifications. Here are some common mistakes that complicate a DWI defense.
Being Involved in an Accident
An automobile accident is an aggravating factor that could complicate your DWI because the prosecutor will look at that when evaluating what type of potential plea deal to offer and how to proceed with the case. In addition, it matters how severe the accident was.
Admitting Alcohol Consumption to the Police
When you are pulled over by a police officer, one of the first things law enforcement will ask for after the license and registration is how many drinks you have had. The mistake lies in the statements given to police officers, with people instinctively stating they only had one or two beers when it is far more than that in many cases.
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Common Mistakes During a DUI Stop |
Description |
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Being Involved in an Accident |
An accident complicates the DWI case as it serves as an aggravating factor, influencing the prosecutor’s decision on potential plea deals and the case’s direction |
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Admitting Alcohol Consumption |
Admitting to drinking, even a small amount, can harm your defense and give police reasonable suspicion to conduct further testing. Always avoid admitting to alcohol consumption |
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Taking the Portable Breath Test |
The portable breath test (Alco-sensor) is unreliable and cannot be used as evidence in court. Participation in this test can complicate your case without offering conclusive results |
Handling the Portable Breath Test
The next issue at hand is the possibility of being asked to step out of your vehicle to take an Alco-Sensor test, also known as a portable breath test.
The Alco-Sensor will tell the police officer whether there is the presence of alcohol on your breath after blowing in it. There is a 20-minute wait before administering the test to ensure you have not consumed any food or put anything in your mouth that would cause a false positive or negative.
The Alco-Sensor portable breath test is not reliable and can never be admitted into evidence if the case were to go to trial.
What is a Portable Breath Test?
In the state of New York, it is unlawful to drive with a BAC of 0.08% or higher as stipulated in New York Vehicle and Traffic Law § 1192.2. For people under 21, a lower threshold applies, as outlined in New York Vehicle and Traffic Law § 1192-A.
A portable breath test (PBT) is a handheld device that provides a digital readout of an individual’s blood alcohol content (BAC). Law enforcement will often use a portable breath test to determine if a driver is operating a vehicle while intoxicated (DWI) or while under the influence (DUI). These devices utilize a chemical reaction to measure the alcohol concentration in a person’s breath.
In New York, a breath analysis instrument measures BAC. Instruments such as breathalyzers must receive approval from the New York State Department of Health (DOH).
Whether the BAC results obtained from a portable breath test are admissible as evidence in a DWI trial depends on 3 key factors:
– The recognition of the specific PBT mode as an approved device by the state
– Proper acknowledgement of the chemical test refusal warnings by the individual and the correct administration and functioning of the portable breathalyzer test during the test.
When you are stopped for DWI in New York and consent to a portable breathalyzer test, the admissibility of the test results hinges on whether the test was conducted correctly and if the device was in proper working order. As per regulations, a police officer has to wait at least 20 minutes before administering the portable breathalyzer test to mitigate the potential impact of mouth alcohol on the results.
The prosecution bears the responsibility to establish that the portable breath test was functioning properly at the time of the test, which is often accomplished through calibration before and after the test.
What is a Portable Breath Test?Field Sobriety tests and IDTU Video at the Station
A big issue will be how well you performed the field sobriety tests when you were pulled over. When you are brought to the precinct, the officer will take an IDTU video, and how you look on the video will be very important regarding how your DWI case is evaluated and how it will proceed.
The video will help take into consideration whether you were walking and turning properly, whether you were standing on one foot okay, if you could touch the tip of your nose with your fingers, or whether you were falling down drunk. Generally, they want to see if you are coherent and more importantly, how well you did on the breathalyzer given at the precinct on video.
New York City uses the Intoxilyzer 5000EN. They will see how you did on the test, what your reading was, how many times you had to take it, and whether it was an accurate machine.
Field Sobriety tests and IDTU Video at the Station
A big issue will be how well you performed the field sobriety tests when you were pulled over. When you are brought to the precinct, the officer will take an IDTU video, and how you look on the video will be very important regarding how your DWI case is evaluated and how it will proceed.
The video will help take into consideration whether you were walking and turning properly, whether you were standing on one foot okay, if you could touch the tip of your nose with your fingers, or whether you were falling down drunk. Generally, they want to see if you are coherent and more importantly, how well you did on the breathalyzer given at the precinct on video.
New York City uses the Intoxilyzer 5000EN. They will see how you did on the test, what your reading was, how many times you had to take it, and whether it was an accurate machine.
Refusing a Breath Test or Field Sobriety Test
If you decide to refuse a breath test, then it is best to refuse every test. Sometimes, you will have a high portable breath test reading, and deciding to refuse the breath test at the station can end up prejudicing your refusal case.
If you refuse to take the breath test at the station, the police officer will also look to see if you also refused the portable breath test at the side of the road. They may also check whether you gave the portable breath test reading and decided to refuse the breathalyzer when arriving at the precinct.
If you refused, you would need to have a separate civil proceeding at the DMV within 12 days of your arrest. The DMV will have to prove certain elements to give you a one-year license revocation, and if you did refuse, the statements you made will also affect your case.
Enhanced Penalties for Specific Driver Categories in DWI Cases
In New York, the consequences of a DWI conviction can be severe, particularly for repeat offenders and those who hold a commercial driver’s license (CDL)…
Additional Risks for Repeat Offenders
If you are a repeat offender, your case will be affected…
Penalties for Commercial Drivers with DWI Charges
If you are a commercial driver’s license holder and if you used your commercial driver’s license to drive for work, this would be taken into consideration.
Typically, a commercial driver’s license is suspended upon arrest, meaning you’d be left without work.
No matter what, any plea a commercial taken such as a downgraded plea of driving while ability impaired, or a VTL plea would result in an 18-month license revocation of your CDL.
Building a Strong Defense Strategy
Mistakes made during a traffic stop for DWI and DUI can greatly affect your defense strategy. Being charged with a DWI and DUI in New York is serious, and DWI charges are often complex. At Jonathan Perez Law, our team of knowledgable DWI lawyers can quickly work with you to understand your options.
Defend Your Rights Today
Navigating the intricacies of the New York criminal justice system can be overwhelming. If you or a loved one are involved in the arraignment process or facing criminal charges, having skilled and knowledgable legal representation is essential.
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