DWI2019-07-28T18:24:42+00:00

DRIVING WHILE INTOXICATED

Section 1192 for DWI in the Vehicle and Traffic Law. Before I explain how I can help you should you be charged with DWI, I will give a brief overview. DWI is a Vehicle and Traffic Law (VTL) infraction as opposed to a Penal Law infraction. Most crimes are Penal Law Crimes, not VTL’s. VTL’s are commonly violations that count against your driving record. DWI counts against your driving record and your criminal record.

The VTL Section for DWI is VTL § 1192. 1192(1) is Driving while Ability Impaired (DWAI). This is the charge for someone driving with .05% blood alcohol content or above but below .08 blood alcohol content. 1192(2) is Driving while Intoxicated with .08 or more blood alcohol content. 1192 (2-a) is the new charge added by the legislature for defendants that have a blood alcohol level of .18 or higher.  1192(3) is the common law statute for DWI. It is charged when someone appears to be driving intoxicated but it is not based on the persons blood alcohol content.  Its usually given with 1192(2) as a backup in case there is a problem with the blood alcohol test. 1192(4) is Driving while Intoxicated, drugs, not alcohol.

DWI’s are a lapse in judgment. Most people do not go out and plan on driving home drunk. When a person is pulled over and given a Desk Appearance Ticket for an alcohol related offense the defendant has to make choices. The first choice is what attorney to hire.

I used to believe that a defendant should always take the blood alcohol Test because the refusal causes so many problems, the least of which is the loss of license for the period of a year. Now, since the legislature amended 1192(2) to add 1192 (2-a) Aggravated DWI, A defendant has to really be careful and know if they’re going to have a blood alcohol content of .18 or higher before making that decision. Should a defendant have a blood alcohol content of .18 or greater, they will be charged with 1192 (2-a). 1192 (2-a) is still a misdemeanor but it comes with enhanced penalties. One of the biggest enhancements is that the District Attorney cannot offer the reduced violation of 1192(1), Driving While Ability Impaired.

1192(1) Driving while Ability Impaired is a violation, not a crime. It still carries a 90-day license suspension along with the other mandatory alcohol related mandatory programs such as the Impaired Driver Program and The Victim Impact Panel. A Defendant charged with DWI (1192 (2), not 1192(2-a)) may also be offered a plea of 1192(1). This is important because of the cumulative effect of alcohol related offenses. A defendant with two DWI’s in 10 years can be charged with a felony for the second DWI. The defendant will not have a criminal record for the DWAI and will not be subject to being charged with a felony if he/she is charged with another 1192(2) within the next ten (10) years. This can really matter for that defendant’s employment opportunities.

When evaluating a DWI for trial I look at several things. The first thing I look at is the initial stop to determine whether the Police had probable cause to stop the defendant in the first place.  If you were pulled over at a roadside DWI Checkpoint where the policed stop everyone that drives through the checkpoint, the police do not need probable cause. Otherwise, the police need a legitimate reason (probable cause) to pull a car over. The police will often give the defendant a traffic ticket to show probable cause for the initial stop. If the ticket is for a busted tail light or some other equipment issue the Officer will be found to have probable cause to stop the defendant and smell alcohol and observe the defendant’s speech and behavior.Sometimes the officer will write a ticket for failure to signal or crossing the double yellow line on a rode that is pocked with potholes or the line is faded beyond being able to see it. On occasions like that, the defendant has a decent chance of winning a probable cause hearing and having the mater dismissed.

After the initial stop, I look at how long the defendant was in custody before the blood alcohol test was administered. The officer is supposed to observe the defendant for 20 uninterrupted minutes to make sure that the defendant doesn’t discharge raw alcohol by burping that may skew the test. A discharge of raw alcohol from a burp is not uncommon and can really throw off the test results. I also look at the time factor to see if the test was given unusually late. It is possible that a person was not legally intoxicated at the time they were pulled over but over time, that person absorbed alcohol into their blood stream from sitting at the police station waiting for a Police Person qualified to work the testing device to show up at the station. The standard for convicting a defendant of DWI is beyond a reasonable doubt. A person with a blood alcohol content of .09 could have been at .07 at the time of the initial pull over if that person had a big meal and before drinking and waited for over an hour at the Police Station to take the test.

The final aspect of the arrest I look at is the test itself. Was the test administered properly? Was the person who administered the test properly trained to administer the test. Was that person the same person who arrested the defendant? I look to see that the device used to test the blood alcohol content was properly calibrated and checked by the Department of Weights and Measures.

The Police do a good job but they are people and people make mistakes. Every Defendant deserves to have their DWI looked at by an attorney qualified to determine if the police made mistakes and whether the defendant has a good chance at prevailing at trial and whether or not they were offered a good plea deal. Call me, Paul Silk Cooper at the Silk Cooper Law Firm, P.C. and I’ll defend your DWI thoroughly.