An arrest for driving under the influence can be a deeply unsettling experience. You're facing serious penalties, including fines, jail time, and restrictions on your driving privileges. However, it is important to know that no DWI case is open and shut, no matter the circumstances. An arrest is not a conviction. There are many elements of a DWI investigation that can be challenged by an experienced attorney.
DWI Penalties Under New York Law
First Offense DWI
The penalties for a first-offense DWI (driving while intoxicated with a BAC of .08% or above) is a misdemeanor offense. It carries a potential fine of $500 - $1,000, up to one year in jail, a six-month license revocation for drivers over the age of 21, and a twelve-month license revocation for drivers under the age of 21.
Second Offense DWI
A second-offense DWI within a 10 year period is considered a Class-E felony. Penalties include increased fines ($1,000- $5,000), a prison term of up to four years, and a license revocation for a period of one year (minimum).
Drivers under the age of 21 face a license revocation period of one year or until the license holder turns 21, whichever time period is longer.
Third or Subsequent Offense DWI
A third or subsequent DWI within a 10 year period is considered a Class-D felony. Penalties include fines of $2,000 - $10,000, up to seven years imprisonment, and a minimum one-year license revocation.
Driving While Ability Impaired by Alcohol
In New York, driving with a BAC of .05% -.07% is an offense known as "Driving While Ability Impaired by Alcohol." The penalties are less severe than those for a DWI. First and second offenses are treated as traffic infractions, while the third offense within a 10 year period is classified as a misdemeanor. Fines, loss of driving privileges, and some jail time are penalties for this offense.
If an individual is arrested for DWI in New York is found to have a BAC of .18% or above, he or she faces charges of Aggravated DWI. Penalties for aggravated DWI are more severe than those for DWI, including higher fines and longer periods of license revocation.
The penalties stated above apply to individuals who are operating under a non-commercial driving license. Different rules apply to those who operate with a commercial driving license (CDL). For holders of a Class A, B, or C CDL, penalties are stricter and the BAC standard is lower. The BAC standard for a CDL driver is .04%. A first offense can result in license revocation of one year (however, if hazardous materials are being transported, this could be a period of three years). A second offense under certain conditions can result in permanent revocation of a CDL.
BAC Test Refusal
New York has what is known as an "implied consent" law. What this means is that any individual who operates a vehicle on public roadways has given consent to a chemical test to determine the presence of alcohol in his or her system. Therefore, if the police suspect that a driver is driving under the influence and the driver refuses to take such a test, their license may be revoked for a period of one year (18 months for CDL drivers) and they will be subject to a fine of $500. Subsequent refusal will result in higher fines and a longer period of revocation.
Many people erroneously believe that if they submitted to a chemical test during a DWI investigation and their BAC was above the legal limit, they have no recourse. This is not true. An experienced defense attorney knows that there are many elements of a DWI arrest which may be subject to a legal challenge. These can include but are in no way limited to the following.
Lack of Probable Cause
Pursuant to the United States Constitution and the New York State Constitution a driver has a right to be free from an unreasonable search and seizure (arrest). Therefore, the police must show that they had probable cause to stop the motor vehicle and arrest the driver for DWI. If there was no legal basis for the traffic stop and/or arrest your attorney can legally challenge the stop and all evidence collected subsequent to the stop.
A breathalyzer machine is not infallible. There are numerous regulations that govern how a breath test machine must be used. The machine must be stored and maintained properly. It must be calibrated and administered properly. This presents many instances in which human error can affect the results obtained during a breath test.
Issues Affecting Breath
A breathalyzer machine is designed to detect the presence of alcohol on the breath. Under perfect conditions involving a healthy human being, the machine may do just that. However, there are myriad reasons why a false reading may occur. These can include medical issues such as diabetes. Diabetics can metabolically produce ketones, acetone, and isopropyl alcohol, and they can be present in the breath. When measured by a breathalyzer, it can be read as ethanol alcohol on the breath, leading to a false positive result.
Hudson Valley DWI Defense
If you are involved in a DWI-related incident, contact me and my legal team for additional information and a free consultation.