Nys Dwi Laws
Defeating the New York DWI Refusal Case Author: DWI Defense Lawyer Larry Newman My typical day begins something like this, "Hi, I got arrested for a DWI last night?" and my response is usually, "let me ask you a few questions first to help give you some guidance and direction." The reason fo...
Defeating the New York DWI Refusal Case
Author: DWI Defense Lawyer Larry Newman
My typical day begins something like this, "Hi, I got arrested for a DWI last night?" and my response is usually, "let me ask you a few questions first to help give you some guidance and direction." The reason for my first couple of questions is to tell me exactly what "type" of DWI case we are dealing with.
DWIs like people come in different shapes, sizes, and packages. DWIs can be:
1. With or without a traffic stop, ie. maybe the police were called to the scene to investigate an accident, or a person asleep behind the wheel, or a BOLO (be on the lookout) for an erratic driver, called in from a tip
2. With or without a breath test (the chemical test back at the police station or barracks)
3. With or without prior DWIs or DUIs or DWAIs or ADWIs
4. With or without a New York State Driver's License
5. With or without a Sobriety Check Point
By no means is this list complete. There are many different DWI situations and combinations.
The Chemical Test Refusal DWI Case is unique for a number of reasons.
First the positives of the refusal case:
1. The police and prosecution do not have a breath test BAC to prove their case.
2. They can not charge VTL 1192 (2) BAC .08 or > or VTL 1192 (2) (a) Aggravated DWI BAC .18 or >.
3. The prosecutor can only charge VTL 1192 (3), "Common Law" DWI.
4. The prosecutor usually only has one main witness, the arresting officer.
5. The prosecutor must prove that "you were mentally and physically incapable ( to a substantial extent) of operating an automobile as a reasonably prudent driver."
6. They must prove this legal burden of "intoxication" beyond a reasonable doubt based upon the police officer's observations, and field testing, if any.
7. They can not use the Preliminary Breath Test results (at roadside) to prove their case.
8. The DWI defense lawyer can cross examine the police officer at the DMV administrative hearing without the presence of the prosecutor.
9. The cross examination can cover the stop, the arrest, and the field testing.
Second, the two main negatives of the refusal case:
1. You will have NO license of any type (conditional or hardship) while your criminal case is pending. NOTE: unless you win at the administrative refusal hearing (unlikely) or the officer does not show for the hearing and it is re-scheduled.
2. The jury will get an instruction from the Judge that they may infer a Consciousness of Guilt from your choice to not take the chemical test.
Personally, I like Refusal cases because they offer opportunities to challenge the purely opinion evidence of intoxication. The opinion of the officer is an opinion based in bias. He or she will want to support their decision to stop and arrest you. Their instructing, demonstrating, and evaluating you on the Field Sobriety Tests or (Roadside Agility Maneuvers) can usually be shown to be unfair. If we can show you were coherent (understood the officer's directions, instructions, questions) then providing other reasons for your bloodshot eyes, slurred speech (or impairment), and lack of balance create REASONABLE DOUBT in the minds of the jury as to your intoxication.
I lost my NYS drivers license after the cop didn’t show up for 2 administrative hearings. What do I do?
I made a cop angry,the kind that is suffering “roid rage”, and I had not broken a law. He charged me with DWI, I was a sober pedestrian, easily defended and exonerated, but he failed to show up for the administrative hearing for refusal??? Twice! I was at the first hearing and the judge postponed it to whenever.I was arrested again on more bogus charges and I couldn’t make bail.I got the notice of the hearing while in jail and I petitioned the judge to postpone,he didn’t and the cop’s lie won.He didn’t show either! I was exonerated on all charges,but I was in jail for four months. If I had been convicted of the of all charges, the max for the misdemeaner would have been 60 days-20 days,1/3 off for good behavior, and if all charges ran consecutively the two violations would have added 20 days,60 days! I waited 2 months in jail, for my,postponed (of course) demanded jury trial, they dropped the misdemeaner to a violation and I won that in a judge trial.Do I have a case and who do I sue?
get a lawyer..
Question about nys dwi common law opposed to an atv vtl 2404 1h?
Was wondering if anyone knows about aggravated dwi and dwi common law opposed to the nys vtl 2404 1h which is driving under the influence of alchool or drugs on an atv. I cant find any information anywhere on this charge and I beleave thats the charge I should have recieved instead of the common law dwi and agravated dwi. Any help would be greatly appreicated, and any knowledge on the penaltys and fines for the 2404, thanks in advance.
What are the laws in NYS regarding teachers and alcohol abuse?
I know someone who is a teacher but also an alcoholic. She will one day, without a doubt, we charged with DWI. How will this affect her career?
Croweye- I DID NOT EMAIL YOU. Get a life and stop creating new IDs to stalk me.
Buddy had a rough night, freaked himself out the next morning?
He drank a good amount. Here’s the thing, he woke up after a night of drinking – probably didn’t drive anywhere or anything – but freaked himself out thinking he got a DWI. I told him he’s an idiot and not to drink so much that you’d forget something like that, but I also told him it’s impossible he wouldn’t know. Here’s my question:
If he wakes up and his car is PARKED AT HIS HOUSE, he couldn’t have gotten a DWI, right? It would have been towed. He was alone, and had no record of calling anyone to pick it up. Where he was driving, it would have been illegal to park over night.
Evidence #2 – He had no paperwork, nothing, to show evidence of getting arrested
Evidence #3 – There is no way a cop would have let him go if he was still drunk enough not to remember anything
Evidence #4 – His license is still in his possession – In NYS, they have a law that permits a cop to seize the license if he failed or refused the breath test.
Evidence #5 – It’s been 4 weeks and there is no record (all police forces here put their records online) of a DWI the night he was drinking.
Help calm my buddies fear and let him know he didn’t get a DWI. I understand he is an idiot and drank wayyyyyy too much. So no judging please. Just back up my points of evidence if I am correct. You wouldn’t not know you got a DWI right?
Also, I’m doing a large paper on DWI’s (kind of sparked by his worries), so all this information helps me too.
One more thing I keep telling him – He probably would have woken up in freaking jail, correct?
I know a little bit… the penalty is as though you were driving an automobile.. meaning you lose your license for a year, etc…
If it at all affects her work, or she is caught drunk at school, she will most likely be called in to the schools HR dept. and offered help, via treatment programs which are sometimes covered in her insurance. If she doesn’t take the help, then probably she will lose her job. If she does chose to get help, and she wants/ needs to take off some time from work, she is able to get disability if a doctor signs the proper forms.
I think you are correct on all counts.
I once had to pick up a friend in jail because he got a DWI. He blew a .28! However, he remembered everything the next morning. Sometimes a person who is heavily intoxicated will hallucinate. That’s probably what happened to your friend.