As a skilled New York DWI attorney, I will use my diverse background and experience to diligently investigate your case to uncover evidence that can be used on your behalf.
I will make sure that the police upheld your constitutional rights during the arrest process.
The penalties for a DWI conviction in New York are severe. If you are convicted for DWiI of Dring under the influence, you may be sentenced to jail time, probation, community service, fines, court costs, and a lengthy driver’s license suspension or revocation.
You will be ordered to attend mandatory alcohol education classes [(Victim Impact Panel and Drinking Drivers Program (DDP)] or to seek further treatment.
You will be ordered to have to get an ignition interlock device installed in your vehicle, which measures your breath before the car will start. Repeat offenders face increased penalties.
The DWI Administrative Refusal Hearing
In New York State, you are deemed to have given your consent to a breath, blood, or urine sample to determine your Blood Alcohol Content (BAC) at the time of a DWI arrest. You may however, refuse to consent to a BAC test. In fact, the police department and State Police are required to read you standard “Refusal Warnings” outlining the consequences of a refusal to submit to a chemical test.
Those warnings are:
- 1. You are under arrest for driving while intoxicated
- 2. A refusal to submit to a chemical test, or any portion thereof, will result in the immediate suspension and subsequent
revocation of you license or operating privilege, whether or not you are convicted of the charge for which you are arrested.
- 3. If you refuse to submit to a chemical test, or any portion thereof, your refusal can be introduced into evidence against you at
any trial, proceeding, or hearing resulting from this arrest.
- 4. Will you submit to a chemical test of your (breath/blood/urine) for alcohol? or (will you submit to a chemical analysis of your
blood/urine for drugs?)
These warnings will be read to you and the Officer will usually ask you to initial a form with the warnings. One does not get to pick what type of test they would like to take for a BAC reading, but the warnings must be conveyed in clear and unequivocal language.
A DWI Refusal Hearing will be held at the Department of Motor Vehicles within 15 days of the arraignment on the DWI charge.
The license will be surrendered to the Court at arraignment and there is no eligibility for either a Hardship or Conditional license during this 15 day period from the Court or DMV. The Officer and the driver must appear at the scheduled Refusal Hearing at the Department of Motor Vehicles.
• If the driver fails to appear, the Refusal Hearing is deemed to be waived and the mandatory civil suspension takes effect.
• If the Officer fails to appear the driver’s license is restored until the rescheduled date.
At the hearing if the driver is found to have refused to submit to a breath, blood, or urine test for the DWI, the license is revoked for one year.
The only way to get your driver’s license back with conditional privileges is to plead guilty or be found guilty of an alcohol related violation (DWAI or DWI) assuming no prior alcohol charges within the last five years. After a guilty finding the driver can enter the Drinking Driver Program and obtain a Conditional license (12 months) for use to, from and during work, child care, medical and dental for the motorist and members of the household. Additionally, DMV offers a three hour weekly block of time of your choosing for personal matters.
A DMV Administrative Refusal Hearing is not a criminal court, Administrative Law Judge (ALJ) can convict you on the Officer’s DWI paperwork even if the Officer does not appear.
The standard of proof is “Clear and Convincing” not “Beyond a Reasonable Doubt”.
If the ALJ finds that you refused to submit to a test, your license will be revoked for one year. If, on the other hand, the ALJ decides the paperwork, procedure, or testimony was not proper, then the ALJ could dismiss the case. The license would be restored.
The Refusal Hearing is important to our Criminal Defense DWI lawyers since it is an opportunity to cross examine the police officer before trial.
Many times our clients request a transcript of the hearing testimony to use at trial. Unlike a civil case, depositions are not taken in a criminal case this however is an opportunity to get as much information out of the Officer about the arrest. In most cases this is an advantage for the New York State DWI Lawyer.
Issues To Be Resolved At The New York State DWI DMV Refusal Hearing:
Only four issues are at issue at a New York State Department of Motor Vehicles Refusal Hearing:
1) Did the police officer have reasonable grounds to believe that the driver was operating a vehicle in violation of any subdivision of
the DWI statute;
2) Did the police officer make a lawful arrest;
3) Was the driver given sufficient warning, in clear and unequivocal language prior to refusing that his/her license would be suspended
and ultimately revoked if he or she refused; and
4) Did driver refuse to a chemical test.
As a result of your arrest for Driving While Intoxicated, you are going to have numerous questions. Our firm has learned over the years, however, that certain questions are asked more often by clients who are charged with an alcohol-related offense.
When reviewing this information, please be aware that many changes to the law surrounding DWI prosecutions over the past several years. As a result, the courts have reviewed much of this new legislation. Therefore, my legal advice on these topics may change as the justice system provides us with further guidance on the new areas of law pertaining to DWI arrests and the prosecution therefrom.
Discussed below are several of the most commonly asked questions and concerns that arise in DWI cases. Please review this information, along with the accompanying chart, so that you have a better understanding of your case and the penalties that could be imposed should there be a conviction under any section of N.Y. Veh. & Traffic Law §1192. Please keep in mind that this is only a brief summary of several frequently encountered topics in a DWI case. Feel free to call me should you have more specific questions.
SUSPENSIONS PENDING PROSECUTION N.Y. Veh. & Traffic Law §1193 (e) (7)
At your first court appearance, a local village justice, a justice town or city judge will arraign you. At your arraignment, the justice or judge will advise you of the pending charges and of your constitutional rights. Most attorneys will waive a reading of the charges and a reading of the rights without waiving them.
If you submitted to a chemical test of your blood (the most common method being a breath test) and the test result was .08 Blood Alcohol Content (BAC), which is a measure of the concentration of alcohol in a person’s blood, the court must suspend your license at arraignment.
If you have a valid driver's license prior to the suspension pending prosecution and you did not have a prior conviction for Driving While Intoxicated or Impaired, or you did not complete the Article 21, Drinking Driver Program within the proceeding five (5) years, you may be eligible for a conditional license 30 days after the arraignment. The Department of Motor Vehicles will issue the conditional license pending prosecution. Please discuss this issue with me should you have any questions.
THE HARDSHIP LICENSE
Sometimes a driver may be eligible for a hardship license. The court which conducts your arraignment will decide your eligibility for this limited use license. To be eligible, the court must determine that you will be subject to “extreme hardship” without this license. N.Y. Veh. & Traffic Law §1193 (e) (7) defines “extreme hardship” as: the inability to obtain alternative means of travel to or from the licensee's employment, or to or from necessary medical treatment for the licensee or a member of the licensee's household, or if the licensee is a matriculating student enrolled in an accredited school, college or university travel to or from such licensee's school, college or university if such travel is necessary for the completion of the educational degree or certificate.
You will need to provide the court with household bills indicating your residence and pay stubs showing your place of employment. You should also contact local taxi services to ascertain the cost of taking a taxi to and from work or in the alternative to and from public transportation. The court may also require you to produce an independent witness to corroborate that there is no public transportation readily available, which would not impose an extreme hardship upon you. The prosecutor will ask if there is anyone who resides with you and whether anyone in your household can provide you transportation.
THE CONDITIONAL LICENSE – POST DISPOSITION
A. The Drinking Driver Program (N.Y. Veh. & Traffic Law §1196)
If this is your first alcohol-related arrest, and you are convicted of either DWI or DWAI, then you are eligible to participate in the N.Y. Veh. & Traffic Law Article 21, New York State Drinking Driver Program (hereinafter referred to as “DDP”). The cost to enroll in the DDP is approximately $225.00.
After enrollment, you also must pay a fee directly to the agency that will conduct your DDP classes. The maximum DDP enrollment fee is $225, payable to the program you attend. Motor vehicle staff will tell you the exact fee and who to pay. Payment is expected when you attend the first class. There will be additional fees if you transfer to another DDP or apply to re-enter a program you have been dropped from.
This program consists of weekly classes for approximately seven weeks and involves a total of approximately sixteen (16) classroom hours.
When you enroll in the Drinking Driver Program, you must pay the Department of Motor Vehicles (DMV) a nonrefundable fee of $75. Other fees also may be required in certain cases. Checks or money orders must be made payable to the “Commissioner of Motor Vehicles.”
During the DDP course, you may be referred to an
Participation in the DDP is limited. Repeat offenders are not permitted to participate in the program if the time from their prior completion of the program to the date of their next arrest is less than five years. The five years runs from the date you completed the DDP until the date of the most recent arrest. It does not run from the date of your last conviction.
Your “Order of Suspension or Revocation” (MV110.1L) from the Department of Motor Vehicles (DMV) will indicate a state or county motor vehicle office where you may enroll in the Drinking Driver Program.
To enroll, you must present your driver license or other proof of identity with signature. A list of the current acceptable proofs of identity (form “MV-44.1”) is available from the DMV Internet Office, by request from a DMV Call Center, and at any motor vehicle office. You also must pay the program fees described in this publication. If you are placed on probation because of this conviction, you also must bring written permission from the sentencing court, or your probation officer, that allows you to apply for a conditional license.
B. Scope of Conditional License
If you are permitted to participate in the DDP, then, absent any aggravating factors, you are also eligible for a conditional license. Although there are limitations imposed on the holder of a conditional license, it does allow you to drive under the following conditions:
(a) To and from your employment and during employment when required;
(b) To and from a class or activity that is part of your rehabilitation program;
(c) To and from classes at an accredited school or vocational institute;
(d) To and from any court ordered probation activities;
(e) To and from the DMV for the transaction of business associated with the license or program;
(f) To and from medical treatment for yourself or a member of your household (requires a letter from a licensed medical practitioner);
(g) During a period of three consecutive daytime hours;
(h) To and from a place, including a school, where your children are cared for and that is necessary to maintain your employment or enrollment in school.
See N.Y. Veh. & Traffic Law §1196 (a).
The cost for the conditional license is approximately $75.00; this is in addition to the fee to enroll in the DDP. It will cost you an additional $25.00 to return your conditional license to the DMV.
When you satisfactorily complete the classroom sessions, your involvement in the DDP will end, unless the program refers you for formal evaluation, and any resulting treatment. Please note that one-third of all DDP attendees are sent for additional assessments and/or treatment. If the Department of Motor Vehicles determines that YOU are in need of additional counseling, failure to complete that treatment will result in the revocation of all driving privileges including a conditional license.
You will receive a “Notice of Completion” (MV-2026) when you have completed all the requirements of the Drinking Driver Program. A copy of your completion notice will be sent to the DMV.
Depending on your license status and your driving record, your license will be restored or you will be eligible to apply for a new license.
You may not be allowed to apply right away if:
(a) Your conditional license is under revocation.
(b) You were under 21 when the alcohol or drug-related driving violation occurred.
(c) You refused an alcohol or drug test on the date of the violation.
(d) You committed the alcohol or drug-related violation while operating a commercial motor vehicle.
IGNITION INTERLOCK DEVICE
As of August 15, 2010, the court must require that any driver convicted of misdemeanor or felony drunk driving charges (Driving While Intoxicated, Driving While Intoxicated per se, or Aggravated Driving While Intoxicated), even first time offenders, install and maintain ignition interlock devices at their own expense on any vehicles they own or operate for a minimum of six months.
For an Aggravated-DWI offense or any repeat alcohol or drug offense within five years, a judge is required to order the system installed on each vehicle owned or operated by the motorist during both the revocation period and any probation period that follows.
An “ignition interlock device” is, to put it simply, a breath test machine attached to the ignition of an automobile. The driver must blow into the device and register no alcohol in his or her breath before being able to start the car. The device is purchased and installed at the expense of the motorist, is connected to a motor vehicle ignition system and measures the alcohol content of the operator’s breath. As a result, the vehicle cannot be started until the driver provides an acceptable sample breath.
A motorist may be eligible to hold a conditional license while using the interlock device.
The installment of an ignition interlock device is in addition to any fine or period of incarceration imposed by the court. It must remain on your vehicle for the entire term of the period of probation or conditional discharge imposed by the court, or at least six months, whichever is longer.
If your period of probation or conditional discharge exceeds the time period of your license revocation, the ignition interlock device must remain on your vehicle even after you are eligible to have your license restored. Moreover, the DMV may grant you a post-revocation conditional license for the remainder of the period you are required to use the ignition interlock device. This post-revocation conditional license imposes the same limitations as those listed for a regular conditional license.
If you are required (or directed by the court) to install such a device, in most cases you will be responsible for the installation fee and monthly charge associated with its operation. Failure to install or maintain an ignition interlock device is grounds for revocation of a conditional license.
Individuals who drive a company vehicle for work may do so without an ignition interlock device being installed on the vehicle provided that it is only driven for work and the employer provides written documentation to the court and probation department that he or she is aware of the driver's conviction.
DRIVER RESPONSIBILITY ASSESSMENTS
If you are convicted of Driving While Intoxicated (DWI), Driving While Ability
Impaired (DWAI) or Driving While Ability Impaired by Drugs, or if you are found to have refused to submit to a chemical test, you will be required pursuant to N.Y. Veh. & Traffic Law §1199, to pay a “Driver Responsibility Assessment” of $250 each year for the next three years. Your learner permit, driver license, or driving privileges will be suspended if you do not make these payments.
ENTRY INTO CANADA AND OTHER COUNTRIES
If you are convicted of any alcohol-related offense, you may be barred from entering Canada.
Canada generally bars any U.S. citizens who have been convicted of a misdemeanor from entering their country. Canada has also been known to exclude individuals convicted of Driving While Ability Impaired by Alcohol (N.Y. Veh. & Traffic Law §1192, a traffic infraction) from entering the country.
To obtain entry to Canada following any conviction, you may need to apply for a Minister's Permit with the Canadian Consulate. Approval of this application would allow you to enter into Canada for a short-term visit. An individual convicted of a crime may not obtain long term entry into Canada until at least five years have passed from the date his or her sentence was completed. At that time, he or she may apply to the Canadian Consulate for “rehabilitation.” If granted rehabilitation, a U.S. citizen with a criminal record may enter Canada in the same manner as if he or she had no criminal record.
The impact of a conviction upon your ability to enter other foreign countries varies from country to country. If being barred from traveling to a particular country could have a negative effect on your business or other dealings, you should inform your attorney so that this aspect of your case may be more thoroughly explored.
After reading the information contained in this letter, you may have additional questions. We encourage you to contact us with these questions or any other concerns you may have as a result of your arrest.