THE INTRO:
PART 1: THE PROCESS
Small swerve, big trouble
So you’ve been drinking and now are driving. Remember that police only need “reasonable suspicion” to pull you over. If you swerve and see those red and blue lights in your rear view mirror, you’ll be advised of why you were pulled over and asked if you were drinking. The best response, generally, is the truth, though Kitson says that a good rule of thumb is “if the truth [will] inculpate you, don’t say anything.”
Although the police officer might have a reason to have pulled you over, the officer must have a probable cause in order to justify an arrest for an alcohol related offense. That can be done in many ways, including his observations of the motorist, but also asking the motorist to submit to what are called Field Sobriety Tests; Finger-to-Nose; Heel-Toe Walk; One-Legged Stand, etc. Additionally, the police officer has within his vehicle an instrument that looks like a cigarette, which is called an Alco-Sensor Device, which although the results of which are not admissible in court, gives a reading of BAC to the police officer, which can establish Probable Cause for an alcohol-related arrest.
So what do you do if you’re drunk? Take my advice, don’t waste your time throwing a mint or penny into your mouth to try and fool the Breathalyzer test. Attorney Kevin Kitson says that mint popping “does nothing to affect BAC.” If your BAC is too high, you’ll be arrested. You’ll then be asked to submit to a test of either your breath, urine or blood, which tests, unlike the Alco-Sensor, will be admissible in a court of law because their dependability is greater than that of the Field Test (Alco-Sensor) administered by the police officer
Despite the availability of Field Sobriety Tests and the Alco-Sensor, the constitutionality of your arrest can always be challenged in court in pre-trial motions and if unsuccessful there, then before a jury.
To blow or not to blow, that is the question
But what if you don’t agree to be breathalyzed? It’s not always the wrong move. Because of certain fourth amendment restrictions, you don’t have to submit to it. However, Kitson reminds that “driving is a privilege, not a right,” and you can still face pretty harsh punishments for refusing the test. If you do refuse to be breathalyzed, you’ll have to go to the DMV for a refusal hearing (which you’ll probably lose). If you lose, your license will be revoked for six months. You’ll also have to go to court for your criminal case and can still be convicted under Vehicle and Traffic Law Section 1192 Subsection 3 (common law DWI as described below). This is bad news but, admittedly, not as bad as a conviction under Subsection 2 which covers those whose BAC is proven to be over .18. For those who think this is a loophole in the law, ask yourself: how many drivers with a .18 BAC are in the right state of mind to decide whether taking a breathalyzer test is in their best interest?
Your day in court
So now you’re in court. Can you plead to a non-alcohol related crime? No. Can you plead your DWI down to a DWAI? Maybe. Kitson’s experience has taught him that Westchester D.A.’s will not plea bargain if your BAC was over .15 or if you have been involved in an accident or have any history of an alcohol related driving offense.”
You drank, you drove, you lost
Finally, let’s say you’re convicted (sorry). The DMV will revoke your license, and the judge will fine you and possibly send you to jail. If you cop a plea to a DWAI or DWI and go to a Mothers Against Drunk Driving impact panel, you’ll be given a “hardship license” for up to 20 days. After that, the judge may allow you to enroll in a Drunken Driving Program (“DDP”) that meets once a week for seven weeks. During this time you’ll be given a conditional license and allowed to drive to and from work (and a few other locations). However, it’s up to the judge whether you are allowed to enroll in the class. If you’ve only been convicted of a DWAI, your license will be restored after you finish the class unless those who run the DDP class think you need further help. If so, you can only get your license back by following their instructions.
Dude, where’s my license?
Just because you’ve lost your license doesn’t mean you can’t drive. It just means you can’t drive as much. A motorist can apply for a hardship license upon their arraignment; that is their first court appearance, at which they are officially apprised of what they are being charged with and their rights there under.
In order to obtain a hardship license, the court will conduct a short hearing, at which testimony will be taken, not exclusively by the defendant, and documents can be offered in evidence in addition to the testimony of other witnesses to show that the defendant is unable, without encountering a hardship, to get to/from work. He must show that public transportation is not a viable option, nor that anyone else is available to drive him to/from work.
A hardship license is limited merely to that activity; that is driving from Point A to Point B, and cannot be used by people whose job requires them to drive, for example, cab drivers, bus drivers, and traveling salesman, etc. After a motorist pleads guilty to either a DWAI or DWI, or is found guilty of those offenses, he can apply for a 20-day stay on any suspension or revocation that would result there from. The court, in its discretion, can grant a 20-day Stay on the execution of any suspension or revocation, allowing the motorist within that 20 days to enroll in a Drinking/Driving Program through the Department of Motor Vehicles.
Once the motorist enters the Drinking/Driving Program, he will be issued a conditional license, again allowing him to drive to and from work during the normal 7-week period required for him to complete that course, and also an additional three hour period at a time to be designated by the motorist, for recreational purposes.
Upon the motorist’s successful completion of the Drinking/Driving Program, his operating privileges will be restored. It should be noted that additionally, under the new law, an attendance at a one-time session sponsored by Mothers Against Drunk Drivers, here in Westchester County, and held a the Westchester County Center, will also be required.
Additionally, now evaluations of motorists are required to establish that they do not have a problem with alcohol; the actual operation of this new requirement is still in a state of flux, that many of the courts, District Attorneys and defense lawyers, are unclear as to its applicability in different situations.
The moral
The moral of this story is obvious – don’t drink and drive. It’s highly dangerous to both everyone else on the road and to you and can cause big trouble in your life. Take the advice of those in the legal and law enforcement profession and don’t drive drunk or let your friends drive drunk. Cabs are cheap compared to the cost of months without your car.
PART 2: THE LAW
The cold hard law
So how does the law handle drunk drivers? Section 1192 on the New York Vehicle and Traffic law covers the subject and is divided into six subsections. They are as follows:
Subsection 1 – Driving While Ability Impaired (“DWAI). Kitson informs us that this is a lesser form of intoxication, “It is a violation, not a misdemeanor, under the Vehicle and Traffic Law.” Drivers who have a blood alcohol level of .05 to .07 will be found guilty of breaking this regulation and will face a 90 days license suspension, up to a $500 fine (for a first offense), and up to 15 days in jail.
Subsection 2 – Driving While Intoxicated (“DWI”). “It doesn’t matter if you can say the alphabet backwards, touch your finger to your nose, or walk in a strait line” says Kitson. If your BAC is over .08, you’ve got yourself a DWI charge. Penalties for first offenders of this misdemeanor include a six month revocation of your license, up to a $1,000 fine, and up to one year in jail.
Subsection 2a – Aggravated Driving While Intoxicated. Blow over a .18 BAC and you’re in trouble. This brand new law (passed in November of 2006) proscribes a one year license revocation (not just six months), up to a $2,500 fine, and up to a year in jail.
For both subsections 2 and 2a, a second conviction within five years of a first conviction (10 for section two) of a section 1192 law adds six months to your revocation period, sets minimum jail time, and can mean an ignition interlock devise gets placed on your car.
Subsection 3 – Common Law DWI. Forget BAC, cops can still arrest you and charge you with a crime if you look and smell drunk. Punishments here are the same as those for a Section two DWI listed above.
Subsection 4 – Driving While Ability Impaired by a Drug. Just because you didn’t drink doesn’t mean you can drive. Take narcotics and get behind the wheel of a car and you’re in for a rude awakening should you get pulled over. Penalties here are the same as for a Section two DWI as listed above.
Subsection 4a – Driving While Ability Impaired by a Combination of Alcohol and Drugs. For those who are on their way back from one hell of a bender, take the bus. Drink, use drugs, and drive, and this new statute (passed in November 2006) provides for a minimum six month license revocation along with up to one year in jail and up to a $1,000 fine.
Keep in mind that with all the above crimes, penalties go way up for second and further offenses and that for drivers under 21
Kevin Kitson is a former
, 9th Floor; (914) 285-9797; kjk@kitsonlaw.com). Over the course of his career he has tried approximately 140 cases to verdict.
