Unlike most crimes in New York, which are set out in the Penal Law, offenses relating to driving while intoxicated (DWI) are codified in the the Vehicle and Traffic Law (VTL). The statutes and regulations dealing with them are notoriously convoluted and confusing. Because the offenses relate directly to driving privileges, there are also multiple "civil" and Department of Motor Vehicles (DMV) consequences that may not be apparent to a defendant and that even many attorneys may not know about.
I will set out below the typical series of events in a DWI case and try to answer the most frequently asked questions.
If Stopped - Should You or Shouldn't You?
Consent to a breathalyzer test, that is. Initially, you should know that there are two separate tests the officer will try to give you. The first is an Alco-Sensor or "breath" test, which is preliminary in nature. It is not particularly reliable and is intended merely to screen out people who have not consumed any alcohol. If the Alco-Sensor comes back positive, the officer will then request that you take the second test, which is known as a "chemical" or breathalyzer test.
Refusal to submit to the preliminary Alco-Sensor test is a traffic infraction (VTL §§ 1194(1)(b) and 1800(a)), subjecting you to a minimal fine.
Refusal to submit to a validly requested chemical test, however, can subject you to far more serious consequences. First, the refusal can generally be used against you in a criminal trial as "consciousness of guilt" evidence. Second, the refusal will also lead to civil, as opposed to criminal, consequences. A DMV refusal hearing will be scheduled, and if the police officer or trooper's conduct is upheld at the hearing, the driver's license will be revoked for a year (if there is a prior DWI offense or refusal in the previous five years, the revocation is 18 months). A $500 civil penalty will also be imposed. Third, a further "disincentive" for refusing the chemical test is that neither a hardship license nor a pre-plea conditional license is allowed in refusal cases (for more information on hardship and conditional licenses, see below).
However, on the other hand, if you take the chemical test and the result is 0.18% blood alcohol content (BAC) or higher, you will be charged with Aggravated DWI, which has more severe penalties than a "plain" DWI, to include license revocation for one year (the same as for a refusal).
Consequently, if you reasonably believe that your BAC will be low, you probably should take it. If it is low enough, below 0.08, you won't be charged with a DWI (but probably will still be charged with DWAI). However, if you believe that your reading will be 0.18% or higher, you probably should not take it, because if your reading is that high, you will be charged with Aggravated DWI, whereas if you refuse, you will only be charged with a DWI. In between these two extremes, the choice is a little more difficult, since a relatively high reading will be harder to negotiate down to a DWAI, but the consequences of a refusal (spelled out above) are also harsh. (In the end, please keep in mind that these statements are general in nature and are not offered as legal advice).
If you find yourself in this situation, the New York Court of Appeals has ruled that, "[I]n this State, a defendant who has been arrested for driving while intoxicated, but not yet formally charged in court, generally has the right to consult with a lawyer before deciding whether to consent to a sobriety test, if he requests assistance of counsel" (People v. Shaw, 72 NY2d 1032 ). So, interestingly, if you are stopped by an officer who suspects that you have been drinking, you have a due process right to call your attorney and ask his or her advice on whether you should consent to the chemical test. Keep in mind that since your right in these circumstances is based on the Due Process clause, not the Sixth Amendment, it is limited, and the police only have to make reasonable accommodations to your request.
At arraignment, your attorney will enter a plea of not guilty. If you show up without an attorney, the judge will adjourn to give you time to hire one or visit the public defender's office.
If you have a New York driver's license, the judge will take it, and it will be mailed to the DMV in Albany, where it will be destroyed. If you are licensed outside of New York, the judge does not have authority to take your license, but he or she will suspend your New York driving privileges.
If you submitted to a chemical test which resulted in a 0.08% BAC or more, the judge will suspend your license/driving privileges pending prosecution (VTL § 1193(2)(e)(7)).
Under VTL § 1193(2)(e)(7)(e), you may be entitled to a hardship license, which will allow you to travel to and from work, medical treatment and/or school.
If you refused to submit to a chemical test, the judge will suspend your license/driving privileges pending the DMV refusal hearing. The judge will notify you of the hearing date and time.
Unfortunately, if you refused a chemical test, you are not eligible for a hardship license or pre-plea conditional license, which means that you will not be able to drive at all until you enter a plea or are convicted (obviously if you are acquitted, there will be no criminal suspension or revocation, but keep in mind that even if acquitted, your license or driving privileges will still be revoked based upon the refusal, unless you win the refusal hearing, see below).
The refusal hearing must be scheduled within fifteen days of your arraignment or your license will be reinstated.
At the refusal hearing, which is held at the local DMV office, the officer or officers who were responsible for stopping you and reading you the refusal rights will testify.
The hearing is limited to the following issues: (1) did the police officer have reasonable grounds to believe that the driver had been driving in violation of an DWI provision; (2) did the police officer make a lawful arrest of such person; (3) was such person given sufficient warning, in clear or unequivocal language, prior to such refusal that such refusal would result in the immediate suspension and subsequent revocation of the driver's license or operating privilege whether or not such person is found guilty of the charge for which the arrest was made; and (4) did such person refuse to submit to such chemical test (VTL § 1194(2)(c)).
If the hearing officer finds all of the issues in the affirmative, he or she must immediately revoke the license or non-resident operating privileges.
If, however, the hearing officer finds any of the four issues in the negative, the hearing officer must terminate the suspension, and the driver will be allowed to drive pending the ultimate disposition of the criminal charges. If the criminal charges are dismissed or if the defendant is acquitted, there will be no driving consequences of the refusal. However, if the defendant accepts a plea or is convicted after trial, his or her license will be suspended or revoked at sentencing.
If the police officers or troopers do not show up for the refusal hearing, the matter will be adjourned. The temporary suspension will be terminated pending the adjourned hearing. If the officer or officers do not show up a second time, the hearing officer may make findings of fact and conclusions of law based upon the chemical test refusal report and any other relevant evidence in the record. (15 NYCRR § 127.9(c); Matter of Gray v. Adduci, 73 NY2d 741 (1988)). Depending on the hearing officer, and the specific circumstances of the case, the failure to show on two occasions may lead to either a termination of the suspension or a revocation of the driver's license.
If the hearing officer revokes, he or she will revoke a license for a first offense for a minimum of one year. If the driver had a previous refusal or DWI offense within the previous five years, the hearing officer will revoke for a minimum of eighteen months.
Prior to the Court accepting a plea, you will probably be required to submit to a substance abuse screening or assessment. If so, you must go to a provider certified by the state Office of Alcoholism and Substance Abuse Services (OASAS). Most attorneys have a favorite provider that they send their clients to. If not, the OASAS webpage provides a list of providers.
The likely resolution of your case is determined by numerous factors, but the most important are whether you have any prior DWI offenses, your the level of intoxication, and whether there was an accident.
Most DWI cases are resolved with a "reasonable" offer by the prosecution and a plea of guilty, but not always. Some times there are issues related to the stop, the conducting of the chemical test, or other matters that can reasonably lead to a favorable jury verdict.
Usually the goal for a defendant charged with DWI or Aggravated DWI will be to obtain a plea offer of driving while ability impaired (DWAI), which is a violation as opposed to a crime and has much less severe consequences, which will be spelled out below.
At plea, the hardship license and pre-plea conditional license will terminate. This means that if the defendant still needs to be able to drive, he or she must request a 20 day stay of the execution of the suspension or revocation, which will allow him or her to drive until the matter is input into the DMV's databases. Once the matter is in the DMV's databases, the defendant (if eligible) can enroll in the Drinking Driver Program (DDP), which as explained further below will allow him or her to obtain a post-plea conditional driver's license.
Because even a plea to a DWAI has relatively severe consequences (such as suspension of a license or driving privileges and likely increased insurance premiums) most would like to plead to a non-alcohol offense. Unfortunately, the law in general prohibits a plea to a non-alcohol offense, so the best offer one is likely to receive from a DWI, DWAI Drugs or Aggravated DWI is a DWAI.
In comparison to other offenses, the fines and surcharges for DWI offenses are relatively high. See the DMV webpage for the exact sentence ranges and surcharges for each individual offense.
When sentenced, the Court will also likely require that the defendant attend one Victim Impact Panel (VIP) and complete the Drinking Driving Program (DDP). Depending on the jurisdiction, the VIP is either provided once a month or every two months. It is, as its name suggests, a panel of people who have been affected by a drunk driver, who discuss the way that "drunk driving" has impacted their lives.
The DDP is a relatively intense program consisting of seven classes and lasting a total of approximately 16 hours. One benefit of signing up for the program is that it will allow eligible drivers to obtain a conditional license, allowing them to drive in limited circumstances throughout the suspension or revocation time period. Another benefit of the DDP is that upon successful completion, an eligible drive will have full driving privileges restored, even if the suspension/revocation period has not expired (exceptions are if the driver refused a chemical test, was under 21 when the offense occurred, or has previous alcohol-related convictions). DMV's DDP webpage provides more information on the program.
Also, in cases where the defendant pleads or is convicted of Aggravated DWI or a regular DWI, the Court must require the installation of an ignition interlock device in any motor vehicle owned or operated by the defendant. An ignition interlock device connects to a vehicle's ignition system and measures the alcohol content in the breath of the operator. The device prevents the vehicle from being started until the motorist provides an acceptable breath sample.
More information on interlock devices may be obtained from the DMV's Interlock Device Webpage.
Something else to keep in mind if you have one or more prior alcohol related convictions is that VTL § 1193(1-a) requires mandatory incarceration or the performance of community service by individuals convicted of a new DWI offense within five years of the previous matter(s) (five days incarceration or 30 days community service for one prior conviction, and ten days incarceration and 60 days community service for two prior convictions).
Further Civil Considerations
In addition to the above criminal sanctions, it is important to realize that there are also numerous non-criminal consequences of an alcohol-related crime.
One of these is the "driver responsibility assessment." If you are convicted of an alcohol or drugged driving-related offense, or if you refuse to take a chemical test, an annual assessment of $250 will be imposed by the DMV for three years, for a total assessment of $750. For more information on this, see the DMV Driver Responsibility Assessment Webpage.
As stated above, if you are convicted of any drinking related driving offense (including DWAI), your insurance premiums will almost definitely go up and your insurance company may even attempt to cancel your policy. In general, alcohol-related convictions remain on insurance company records and are factored into premiums for between five and ten years. If your policy is cancelled and you cannot find insurer, you will probably have no choice but to insure with the New York Automobile Insurance Plan (NYAIP), which was established pursuant to Article 53 of the New York Insurance Law to provide coverage to those who are unable to obtain coverage in the voluntary market. Needless to say, given the perceived additional risk, insuring through NYAIP is much costlier than through the voluntary market.
Also, if you have two alcohol-related offenses within the past 25 years, you should be aware that any new alcohol-related offense will mean that the DMV will deny you re-licensing for five years in addition to the statutory revocation period, and then after the five year time period, you will be re-licensed with a "problem driver" restriction for an additional five years, which will require you to install and maintain an interlock device. If you have two previous alcohol-related offenses and any one of your offenses was a "serious" driving offense, you will be "permanently" denied re-licensure. See the DMV Multiple Offender Webpage for more information.
If your license is suspended or revoked, it does not automatically become "active" again at the completion of the suspension or revocation time period. For a suspension, you must pay a suspension termination fee. In the case of a revocation, you must actually re-apply for a new license and in doing so will have to pay the application fee.
If you are not a U.S. citizen, you should inform your attorney of this. Depending upon the facts of your case, any conviction could negatively impact your status and even lead to deportation.
If you have a commercial driver's license (CDL), you should be aware that there are multiple provisions of the VTL that apply directly to the CDL. For example, if you possess a CDL and are convicted of a first alcohol offense, your CDL will be revoked for a year, even if you were not driving a commercial vehicle at the time of arrest (the non-CDL portion of the person's driver's license will be suspended/revoked for the same amount of time as if the driver was a non-CDL holder) (VTL § 1193(2)(b)(5(i)). If you are a repeat offender, there is a realistic possibility of a "permanent" CDL revocation (see, VTL §§ 1193(2)(e)(3)(b), 1194(2)(d)(1)(c), 510-a(2)(c) and 510(6)(d)). Also, adding insult to injury, there is case law that states that where a CDL is a job requirement, failure to maintain a valid CDL precludes collection of unemployment benefits (In re Geer, 255 AD2d 676 [3d Dep't 1998]).
If you were under 21 when you were alleged to have committed an alcohol offense, you are considered an "underage offender," and the so-called "Zero Tolerance" laws (VTL §§ 1192-a and 1194-a) apply to you and license suspension/revocation periods are in general longer. Under the Zero Tolerance laws, a driver under 21 is deemed to have consumed alcohol with a BAC as low as 0.02% (which is why the law is referred to as "zero tolerance," i.e., any drinking and driving at all, even with minimal or no impairment, will still "not be tolerated"). Of benefit, however, to the underage offender is the fact that the proceeding is civil in nature and not criminal. It takes place not in a criminal court, but rather at a DMV hearing (VTL § 1194-a).
Thank you for reviewing my DWI page. I hope that the information has been helpful, but remind you that it has been general in nature and was not intended to be legal advice. If you are facing DWI and/or other charges, you should seek legal counsel regarding the specific facts of your case. If you are looking for an attorney, please feel free to contact me, and I will be glad to provide you a free initial consultation where we can discuss your case in greater detail.