There is no question that being accused of a DWI can have a dramatic affect on your life. Penalties include; jail, probation, exorbitant fines, and/or the revocation and suspension of your drivers licenses. Because of the prevalence of DWI prosecution, it is easy to underestimate the seriousness of being accused of a DWI. It is important, that you chose an attorney that is respected by the District Attorneys Office.
When you are pulled over, the best advice is to wisely choose an attorney, that not only understands, the nature of a DWI, the rights one has when accused; and the intricacies of the law and one who can properly navigate the Court system. When you hire Petito & Petito, you will be represented by a seasoned and skilled trial attorney. This is incredibly important, since all cases do not settle by way of plea.
Further, because we utilize a team approach in your representation–our firm is able to keep costs to the client extremely reasonable. Please, continue reading for some information on DWIs.
An arrest for a DWI begins with a seemingly innocuous act, the stop of your vehicle. It is important to understand that an officer can use any traffic infraction as cause to pull your vehicle over. After your vehicle has been stopped, an officer will utilize tests in determining whether or not to make an arrest for a DWI.
One of the more common tools officers use, are called performance tests. These are also known as field sobriety tests. The more common tests are as follows:
- Horizontal gaze nystagmus
- One-leg stand
- Walk and turn
- Finger to nose
Both your level of performance and or refusal to participate in these tests are fair game during a trial or hearing. That being said, a knowledgeable attorney can recognize situations which render these results inadmissible. For example, the horizontal gaze nystagmus test is not admissible without a scientific foundation.
In addition to the performance tests, the police also administer screening tests such as, an Alco-Sensor; which is often confused with a breathalyser. The results of an Alco-Sensor test is admissible at your probable cause hearing (discussed below). Though the test results are admissible at your probable cause hearing, an attorney will object to its admissibility during trial, as it is not scientifically reliable. It is also important to note that your refusal to take the Alco-Sensor test is not admissible at trial, so long as you do not contest the officers probable cause. However, your failure to submit to the test itself, is a traffic infraction.
In addition to the field sobriety and Alco-Sensor test, are the Chemical tests. The Chemical tests are either a Breathalyzer, Datamaster, Intoxilyzer device, blood, urine or saliva tests.
Generally, you are subject to a chemical test when the officer reasonably believes you were driving while intoxicated. Though the officer cannot force you to submit to a chemical test, the officer must advise you that a failure to submit to the test will result in an immediate suspension of your license, as well as revocation of your driving privileges for a minimum of six-months. This suspension and revocation will occur at your initial arraignment—and without notice, pending a probable cause hearing. In addition to the suspension, you will subject your self to a $500 civil penalty. You will be advised of the hearing date at the arraignment, as it must be held within 15 days—or your license is reinstated. However, even if the officer does not show up to the probable cause hearing, a finding against you can still occur, based on his written report. Thus, a well trained attorney may subpoena the officer in those situations.
Also, your refusal with regard to a chemical test, is admissible at trial so long as the proper warning was given, against you. That being said, chemical tests, in certain situations, are subject to a motion to suppress—made by your attorney.
It is important to understand, that you have a right to consult an attorney regarding the chemical test.
The Prompt Suspension Law
At your arraignment, the arraigning court is required to suspend your drivers license when you are charged with a DWI. However, the court must first find that the accusatory instrument is sufficient —and allow your attorney to rebut its sufficiency. Also, the court must be provided with certified test results.
- For drivers with an out-of-state license, the court will suspend your driving privileges in New York.
- For drivers that are under 21, the court is required to suspend your license immediately.
- If your license has been suspended for more than 30-days, you can apply for a pre-conviction conditional license.
Probable Cause Hearing
Prior to any suspension of your license, you are entitled to a probable cause hearing, or Pringle Hearing. Basically, a Pringle Hearing determines whether or not there was probable cause to show you committed a alcohol related offense. Though the hearing is extremely limited in scope, it is an available mechanism to fight the prompt suspension of your license–in certain cases.
The Hardship License
The arraigning court has the power to grant a hardship license in limited cases. If your license suspension results in an extreme hardship such as, an inability to get to work or medical treatment, the court will issue a hardship license. It is important for your attorney to make the proper application to the court knowing the factors which that court normally considers. A well trained attorney will also inquire as to whether; other drivers live in your home and their ability to provide transportation; your occupation and health; proximity to your employment, and the availability of public transportation.
DWI and DWAI Conviction
If you are convicted of a DWI your license is revoked for six months. Alternately if you are convicted of a DWAI (Driving While Ability Impaired) your license is suspended for 90 days.
Normally if you are convicted of a DWI , you will be required to enroll and complete a drinking-driver program or DDP (see below). In most situations, after a plea to a DWI, you are entitled to a 20 day-stay, of your license suspension. While engaged in this program, you will also be entitled to a conditional license.
Alternatively, individuals convicted of DWAI, are not entitled to a conditional license, but instead are eligible for a restricted license.
The Financial Cost and Available Punishments of a Conviction
Below, are the general costs and applicable punishments for the most common alcohol related convictions:
Aggravated Driving While Intoxicated (.18 and higher blood alcohol content):
First offense is a misdemeanor
Fines for first offense: $1000-$2500
Jail sentence: up to one year
License action: minimum 1-year revocation
Driving While Intoxicated (DWI) (.08 and higher blood alcohol content):
First offense is a misdemeanor
Fines for first offense: $500-$1000
Jail sentence: up to one year
License action: minimum 6-month revocation
Second offense: Class E felony (if prior DWI conviction within 10 years)
Fines for first offense: $1000-$5000
Jail sentence: up to 4 years in jail; or, a minimum 5 days in jail or 30 days of community service
License action: minimum 1 year revocation plus ignition interlock and alcohol assessment
Driving While Ability Impaired by Alcohol (DWAI) (More than .05, but less than .07 Blood Alcohol Content)
First offense is a traffic infraction
Fines for first offense: $300-$500
Jail sentence: up to 15 days
License action: 90 day suspension
Zero Tolerance (Drivers under 21)( .02 through .07 Blood Alcohol Content)
First offense is a traffic infraction
Fines for first offense: $125 minimum and $100 suspension termination fee
License action: 6-month suspension
*****For drivers that have a Commercial drivers license; your license will be revoked for a minimum of one year upon a conviction.
It is also important to understand that in addition to the fines, the court imposes a surcharge on all misdemeanor convictions ($160), and felony convictions ($270)
The Conditional License
You are entitled to receive a conditional license if this is your first DWI or DWAI conviction and you participate in the Drinking Driver Program (DDP).
A conditional license is a very limited license and allows you to drive for the following reasons:
- to and from work, and during work if it is part of your job;
- to and from class at an accredited school or college;
- to transport your child to and from a child care facility or school when necessary to maintain your employment;
- to and from the DDP class and any required evaluation;
- to and from a state or county DMV for business related to your conditional license;
- to and from court-ordered probation activities;
- to and from medical examinations for you or your family, as certified in writing by a physician; and/or
- during the three-hour weekly period listed on your conditional license attachment.
The Driver Responsibility Assessments
In addition to the above mentioned fees, a conviction of an alcohol-related crime or traffic violation requires payment of a responsibility assessment. The assessment is an annual charge of $250, which will continue for three years.
The Drinking Driver Program (DDP)
The DDP is required if you are convicted of an alcohol or drug related driving violation. While in the program, you may be eligible for a conditional license. Generally, the DDP is a 7-week long classroom session, which meets once a week. The classroom sessions are two to three hours in length.
As part of the DDP, you may be referred for a formal substance abuse evaluation. It is important to discuss this with your attorney, prior to taking a plea.
Albany has passed some major DMV licensing rules this past September. These rules could have a dire effect on those convicted of DWI’s and DWAI’s. In a nut shell, the DMV has created a 25 year look back procedure, which will determine whether a motorist who has received a revocation for an alcohol related operating event should be re-licensed. Though this new procedure is in its infancy, some important information can be gleaned from the new regulations.
Beginning first with subdivision [c] of section 2.2, a new paragraph called Problem Driver Restriction has been added. This allows the DMV to impose restrictions on individuals deemed to be a problem driver. In that regard, it allows them to impose an ignition interlock requirement for a substantial period of time. For the most part, this will be utilized when the DMV, in their discretion permits a motorist with three or four alcohol or drug related operating offenses to be relicensed.
Section 132.1 is the enabling section of the new regulations. It defines a dangerous repeat alcohol or drug offender-for which the regulations apply. This section includes every violation under the vehicle and traffic law section 1192 (alcohol related offenses), in addition to refusals to submit to a chemical test—exclusive of an 1192 conviction. A dangerous offender is an individual whom has five or more alcohol or drug related convictions or incidents in any combination in his or her life time. Subdivision (b)(2) also includes drivers who have four or more alcohol or drug related convictions or incidents in any combination and one or more “serious driving offenses” within the past 25 years.
A serous driving offense is defined as fatal accident with no attribution of fault, a driving related penal law conviction, conviction of two or more high point driving violations—other than one which forms the basis for the review, 20 or more points from any violations other than the violation that forms the basis for the review. Further, a high point driving violation is one where five or more points may be assessed.
Procedurally, once the DMV receives information that an individual fits within the dangerous repeat alcohol or drug offender category, they will issue a proposed revocation notice. Any individual who receives this notice shall have a right to a hearing, to contest the proposed revocation. The burden at the hearing requires a showing of “unusual, extenuating and compelling circumstances.
The new regulations also modify an individual’s right to obtain their full driving privileges after a DWI or DWAI conviction. Previously, when an individual has finished the DDP program, the DMV rescinded the remaining portion of the revocation or suspension. However, if the individual has two or more alcohol or drug related driving convictions or incidents within 25 years from the date of the program, they are ineligible for restoration of full driving privileges. Simply put, the individual would have to ride out the full suspension or revocation.
If an individual has five or more alcohol or drug related operating indents, they will be permanently denied licensing.
If an individual has three or four alcohol or drug related incidents and one serous driving offense, he or she will be deemed a persistently dangerous driver, and receive permanent denial unless the individual can establish unusual and compelling circumstances.
The next two categories and consequences depend on the basis of the immediate revocation. If the revocation occurs because of an alcohol related offense or incident, and the individual has three or four alcohol related offenses, which precede the date of the revocable offense, the individual shall be denied licensing for a period for five years in addition to the statutory revocation. These individuals will also be subject to an interlock requirement for an additional five years. Conversely, if the revocation occurs for a non-alcohol related operating offense, or the incident and the driver has not been found to have committed a serous driving offense, but has three or four alcohol related operating offenses or incidents prior to the date of the revocable offense, then licensing will be denied for a period of two years in addition to the statutory period. Further, they will be subject to a restricted license for a two year period.