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In New York any drunk driving matter raises a host of potential consequences. In addition to the possibility of a criminal conviction and incarceration a DWI arrest and/or conviction may result in the revocation of your driver's license, the impounding and forfeiture of your vehicle, the mandatory installation of an ignition interlock device on all vehicles to which you have access, court ordered alcohol treatment, the mandatory completion of the Drinker Driving Program (DDP), DMV hearings as well as multiple fines and court costs. In addition to defending you in the criminal court proceeding itself, we are well-versed in all of these collateral consequences and will help you navigate them as well.

Common Law and Statutory Driving While Intoxicated

In New York there are two legal theories by which you can be charged with Driving While Intoxicated. The first is what is known as Common Law Driving While Intoxicated. This is based purely on the police officer's observations and commonly comprises the following allegations: watery, bloodshot eyes, unsteady balance, odor of alcohol on breath. The second is what is known as Statutory Driving While Intoxicated. This is based upon scientific proof of the level of alcohol present in your blood. New York State deems you intoxicated for this purpose when your blood alcohol level is 0.08 percent or greater. This is usually proven via a chemical breath test also known as a breathalyzer. The accuracy of such a test and the manner in which the test was administered are frequently ripe areas of attack.

For both Common Law and Statutory Driving While Intoxicated, in addition to the intoxication element, the district must also prove operation of the motor vehicle. This commonly comprises the police officer's observation that the key was in the ignition and the engine was running.

Ignition Interlock

An ignition interlock device (IID) is essentially breathalyzer installed in a vehicle that prevents the engine from starting if your blood alcohol concentration is 0.25 percent or greater. In order to prevent someone else from breathing into the device and starting the car for you, at random times after the engine has started, the IID will require another breath sample. If the breath sample is not provided of if it exceeds the allowable blood alcohol concentration, the device will log the event, warn you and then start up an alarm (lights flashing, horn honking) until the ignition is turned off.

As of August 15, 2010 New York State require everyone sentenced for Driving While Intoxicated to have such an ignition interlock device installed on any vehicle that they own or operate, and such drivers must have an "ignition interlock" restriction added to their driver's license.

To make matters worse these IIDs have proven to be highly susceptible to false positives. Even food as innocuous as bread has been known to give a positive reading for alcohol.

Vehicle Forfeiture

In 1999, the New York City Police Department began commencing forfeiture actions of the automobiles driven by people accused of driving while intoxicated. The basis of this policy is that the vehicle is the instrumentality of a crime and is, therefore, subject to forfeiture under the New York City Administrative Code. A forfeiture action is a civil lawsuit brought by the Police Department, and is a completely separate proceeding from the underlying criminal case which is prosecuted by the District Attorney. The New York City Police Department's Forfeiture Initiative has been upheld as constitutional despite challenges that the Initiative was prohibited under state law, that forfeiture constituted an excessive fine and that forfeiture violated due process requirements for taking property.

DMV Refusal Hearing

In New York State if the police suspect that you are driving while intoxicated they will request that you submit to various tests such as field sobriety tests and the breathalyzer. If you refuse to take such tests the Department of Motor Vehicles will hold a hearing to determine whether you did in fact refuse and whether adequate "refusal warnings" were given to you. At such a DMV hearing, known as a Refusal Hearing, if the administrative law judge finds that you did refuse such tests (for this purpose "refuse" has an elaborate legal definition), your driver's license will be revoked for one year. The refusal to perform such tests can also be used as evidence against you in a criminal trial.

We are particularly familiar with DMV Refusal Hearings as our firm regularly represents clients at such hearings. We use the occasion of such a hearing to cross-examine the arresting officer as to the basis for the car stop and every detail of his observations of you, often with successful results.

Suspension of License Pending Prosecution

Even though the law presumes you are innocent until proven guilty, driving is considered a privilege, not a right. Furthermore, New York courts have held that having a driver's license suspended is not a punishment. Therefore, the law does allow for the suspension of your driver's license while your criminal matter is pending.

Depending on the allegations in criminal complaint and whether the test results are provided to the court are certified, there may be a basis to argue that your license should not be suspended during the pendency of the criminal matter.

Sentence Chart

DRIVING WHILE ABILITY IMPAIRED BY ALCOHOL DWAI
(more than .05 up to .07 Blood Alcohol Content [BAC])

Conviction Fine* Jail Sentence License Action**
1st Offense (Traffic Infraction) Minimum $300 Maximum $500 Up to 15 Days 90-Day Suspension
2nd Offense Within 5 years(Traffic Infraction) Minimum $500 Maximum $750 Up to 30 Days Minumum 6-month Revocation
3rd Offense Within 10 years (Misdemeanor) Minumum $750 Maximum $1,500 Up to 180 Days Minumum 1-Year Revocation if current violation occurred within 5 years of previous violation**

DRIVING WHILE INTOXICATED DWI
(.08 and higher Blood Alcohol Content [BAC] or other evidence of intoxication)

Conviction Fine* Jail Sentence License Action**
1st Offense (Misdemeanor) Minimum $500 Maxiumum $1,000 Up to 1 Year Minimum 6-Month Revocation
2nd Offense Within 10 years (Class E Felony) Minimum $1,000 Maxiumum $5,000 Up to 4 Years; minimum 5 days jail or 30 days of community service Minimum 1-Year Revocation, plus ignition interlock and alcohol assessment
3rd Offense or more Within 5 years (Class D Felony) Minimum $2,000 Maxiumum $10,000 Up to 7 Years; minimum 10 days jail or 60 days of community service Minimum 1-year Revocation, plus ignition interlock and alcohol assessment

AGGRAVATED DRIVING WHILE INTOXICATED A-DWI
(.18 and higher Blood Alcohol Content [BAC])

Conviction Fine** Jail Sentence License Action**
1st Offense (Misdemeanor) Minimum $1,000 Maxiumum $2,500 Up to 1 Year Minimum 1-year revocation Revocation
2nd Offense Within 5 years (Class E Felony) Minimum $1,000 Maxiumum $2,500 Up to 4 years; minimum 5 days jail or 30 days of community service Minimum 18-month revocation
3nd Offense or more within 10 years (Class D Felony) Minimum $2,000 Maxiumum $10,000 Up to 7 Years; Minimum 10 days jail or 60 days of community service Minimum 18-Month Revocation**

DRIVING WHILE ABILITY IMPAIRED BY A DRUG
DWI-Drug

Conviction Fine* Jail Sentence License Action**
1st Offense (Misdemeanor) Minimum $500 Maxiumum $1,000 Up to 1 Year Minimum 6-Month Revocation
2nd Offense within 10 years (Class E Felony) Minimum $1,000 Maxiumum $5,000 Up to 4 Years Minimum 1-year Revocation
3rd Offense or more within 5 years (Class D Felony) Minimum $2,000 Maxiumum $10,000 Up to 7 Years Minimum 1-year Revocation

DRIVING WHILE ABILITY IMPAIRED BY A COMBINATION OF ALCOHOL OR DRUGS
DWAI-Combination

Conviction Fine* Jail Sentence License Action**
1st Offense (Misdemeanor) Minimum $500 Maxiumum $1,000 Up to 1 Year Minimum 6-Month Revocation
2nd Offense Within 5 years (Class E Felony) Minimum $1,000 Maxiumum $5,000 Up to 4 Years Minimum 1-Year Revocation
3rd Offense or more Within 10 years (Class D Felony) Minimum $1,000 Maxiumum $5,000 Up to 7 Years Minimum 18-Month Revocation**

ZERO TOLERANCE
Drivers Under 21 (DMV administrative finding of .02 to .07 Blood Alcohol Content [BAC])

Conviction Fine* Jail Sentence License Action**
1st Offense Minimum $125 6-Month Suspension $100 Suspension Termination Fee
2nd Offense Minimum $125 1-Year Revocation or until age 21, whichiver is longer $100 Re-Application Fee

* Conviction Fine* only. Does not include mandatory conviction surcharge or crime victims assistance fee.

** For license revocations, the Department of Motor Vehicles determines when your license can be returned. Its return or reinstatement, based on state law or regulation, is not automatic. You must reapply for your license and may have to take a test. Three or more alcohol or drug-related offenses with 10 years can result in a permanent revocation, with a waiver request permitted after at least five years.