Driving While Intoxicated (DWI)
Queens, New York

DWI in New York

A conviction of DWI in New York can carry a severe and far-reaching impact on the lives of the defendant and his or her family. Such a conviction on one’s record can affect areas as essential to one’s life as employment and housing to government assistance and even impact the standing of professional licensees, such as physicians and attorneys.

Given the wide variety of negative consequences that a conviction of this type can impose, careful and deliberate consideration should be given to all of the options available, and the advice of a well-qualified attorney experienced in this area of law is an essential part of the process. Call Mr. Cohen at 718-275-5900 with experience in defending DWI cases in all five boroughs.

Potential areas of weakness in the State’s case:

In any criminal case, there are several areas of that can be exploited in weakening or even eliminating the case brought against the accused. A solid understanding of these potential weak spots in defense of a Brooklyn, Queens, Manhattan, Nassau or Suffolk County DWI case provides an opportunity for either removal of the charge or at the very least negotiation of a more positive and less severe outcome in any plea bargain. These areas include:

The legality of law enforcement’s initial stop of the vehicle:

It is unlawful for any law enforcement officer to make a vehicle stop without a valid justifiable reason. Doing so will constitute an unlawful search proscribed by the Fourth Amendment of the United States Constitution. Any evidence obtained from an unlawful search is inadmissible in prosecution of the accused.

While to make an initial stop, the officer is not required to have “probable cause,” the officer is required to have a reasonable suspicion of illegal activity to make a lawful stop.

However, if the vehicle is pulled over for any valid reason, any evidence of illegal activity (in this case drunk driving) is admissible for prosecution purposes. That is to say that if the vehicle is pulled over for having an expired tag, and if the officer smell’s alcohol on the breath of the driver, the officer will at that point have a valid reason to conduct a field sobriety test which would be admissible. It is worth mentioning that the stopping the vehicle, even for a valid reason, does not in and of itself provide a valid reason for a search of the vehicle compartments and such a search cannot be legally conducted without the permission of the driver or the owner of the vehicle. It is important that permission be denied to any officer asking to conduct a search of closed compartments of the vehicle. Any such search, if conducted without the permission, constitutes an illegal search and is not admissible in evidence unless the officer has an independent legal reason for conducting such a search.

The most important factor in existence of a reasonable suspicion of driving under the influence of alcohol is the driving behavior of the motorist. Assuming a valid initial stop, the following is an incomplete list of other possible evidence that may be used in giving the officer the right to conduct a more in-depth search (such as a field sobriety test) and in prosecution of the case:

Statements by the Driver; Statements by passengers and other witnesses; Open containers in the vehicle; Slurred speech and other behavior consistent with intoxication by the driver; Biophysical indications of intoxication, such as glassy eyes and impaired motor functions. Odor of alcohol or other controlled substances: Paraphernalia for the use of drugs in plain view of the officer.

To prove its case, the prosecution must prove all of the following facts:

Driving or operation of a motor vehicle on a highway or a road while under the influence of alcohol.

Blood Test: Certain types of cases can be subject to a blood test. Blood tests are more accurate, however, since it takes more time to obtain a blood sample, there is more time to metabolize alcohol out of the system before the sample is given. Blood samples are obtained by medical, EMT or other qualified personnel and will be sent for analysis.

Field Sobriety Test: The arresting officer can, and usually will, subject a driver suspected of driving under the influence of alcohol to a field sobriety test. Some of the exercises in conducting this test are:

The horizontal gaze nystagmus (uncontrolled eye movement) Walk and turn; One legged stand; Finger to nose exercise; Reciting the alphabet exercise.
Special laws regarding DWIs in New York: As of November 19, 2009, New York has enacted the Leandra’s Law which strengthened the penalties against drunk drivers and requires individuals convicted with a DWI to have in place an ignition interlock device installed on any vehicle they own or operate. This law also increased the penalty for driving under the influence of alcohol or any controlled substance with a child of fifteen or less to an E class felony.

Penalties: The following are the penalties prescribed by the state of New York for drunk driving:

Additional penalties

• greater penalties can also apply for multiple alcohol or drug violations within a 25-year period
• surcharges are added to alcohol-related misdemeanors ($260) and felonies (generally $400, but varies slightly depending on court of conviction)
• three or more alcohol or drug-related convictions or refusals within 10 years can result in permanent revocation, with a waiver request permitted after at least 5 years

• • A driver with an Aggravated DWI violation conviction within the prior 10 years will receive a minimum 18-month revocation if convicted of DWI, DWAI/Drugs or DWAI/Combination. Also, a driver with a prior DWI, Aggravated DWI, DWAI/Drugs or DWAI/Combination with the prior 10 years will receive a minimum 18-month revocation

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Mr. Cohen has represented hundreds of clients on DWI and DUI matters and successfully challenged alcohol tests such as the Portable Breathe test and Intoxilyzer examination.

Call 718-275-5900 for more information about Drug Cases in New York or to schedule your free consultation with a New York Criminal Defense lawyer from The Law Office of Jeffrey D. Cohen.