If I have been drinking, and I am stopped by a police officer and
questioned, what should I do?
Under New York State 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
2. If the Police Officer asks that I submit to Field Tests, what
should I do?
Under New York State 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
3. Should I answer any questions if I am arrested?
No, a person is not required to answer any questions. All that is
required is that you produce your driver's license, vehicle registration and
insurance card. Anything you say will be used against you. It is
better to make no statements other than I want to speak to an
attorney. If you are arrested, politely refuse any other questions
until you speak to an attorney. Never waive your Miranda Rights -
Always ask for an Attorney and refuse to answer any questions until
you speak to one. That is your Right.
Should I take the chemical test?
If a person refuses to submit to a chemical test in New
York State, their license will be immediately suspended, and subsequently
revoked by the DMV if the motorist does not prevail at the DMV
refusal hearing, not withstanding 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
5. My driver's 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 driver's 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 defense lawyer may be able to get your driver's license back after the
hearing, and on those occasions where the police officer does not
show up, your driver's license will be returned to you pending the hearing.
If you fail to show up, you have waived your hearing, your driver's 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 a DWI defense attorney who is experienced in this field to represent you.
A qualified DWI defense 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
DWI defense lawyer can help negotiate a plea to a lesser charge, if you desire,
or take the matter to trial. In addition, a qualified DWI defense lawyer can
assisted you in obtaining your conditional driver's license and prepare you
for the NY State Drinking Driving Program.
8. How reliable is (breathalyzer) breath testing in determining a person's Blood
Based upon the research that has been conducted, breath
testing (breathalyzer) is not a very reliable in determine a person's true
(BAC) blood alcohol content. Given that the breathalyzer machines
are based upon assumptions about the individual suspect that may not
be true, breath testing (breathalyzer testing) is at best a shot in
the dark in determining a person's accurate blood alcohol content
(BAC) at any given time.
9. If I blew a .08 or more, does that make me guilty of DWI?
No, just because a person blows a .08 or more doesn't
make them automatically guilty of DWI. In order to convict a person
of DWI based upon a breathalyzer reading, the prosecution must prove that at the
time of operation of the vehicle the motorist's Blood Alcohol
Content (BAC) was .08 or more. In New York, a breathalyzer reading of .08 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 .08 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 .08 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 .08 or more at the time of operation
based upon one test.
10. Where can I find a qualified defense 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 defense cases.
For those in the Nassau County or the Suffolk County area, call my office at (516)
794-3500 for a free consultation. Also by contacting the National
College For DUI Defense.
For More Information And To Schedule a Free Consultation with a
DWI Lawyer Call
Our Office: 1 516 794-3500
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