Top 10 DWI Frequently Asked Questions
1. 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 attorney.
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 the results.
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 vehicle 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.
4. 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 you.
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 driver's 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 Alcohol Content?
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.