DWI
New York DWI law gives all motorists a qualified right to consult with a lawyer before deciding whether to take or refuse the chemical test. This is regarded as a "qualified right" because although a person arrested may have a right to call and obtain advice from a lawyer, the police, nevertheless, do not have to wait for that lawyer to show up.
Its important to consult with an attorney before deciding this issue, since taking or refusing the test is a complicated decision following a drunk driving arrest. And, this decision can be based on many factors.
DWI arrests in New York involve two separate cases for a person who is accused of drinking while driving. The first is the DWI case in criminal court; the second is the DMV case. This is where the New York DMV is empowered to suspend the driving privileges of a person accused of DWI or DWAI (driving while abilities are impaired by alcohol).
In New York, the term "DWI" is also known as "DUI" (Driving Under the Influence). This is generally brought in one of two ways. First, it may brought as a "per se" violation of the DWI law (VTL 1192.2 which requires a reading of alcohol in a person's blood to be .08 of one per centum or more) which is based only on alcohol level, and not driving impairment.
The second way that DWI prosecution may take place is under the "common law" theory. This is where the prosecution must prove that the driver is intoxicated. In this instance, intoxication (for the purpose of Vehicle and Traffic Law cited as VTL 1192.3) is a condition where the motorist lacks the necessary physical and mental skills to operate a motor vehicle as a reasonable and prudent driver. In this instance, the officer may claim such things such as that the accused had "water bloodshot eyes", "slurred speech", "the smell of alcohol on their breath," they were "unsteady", etc. In other words, New York DWI arrests based on common law do not require any measurement of Blood Alcohol Content (BAC). In fact, they may be based entirely on the opinion of the arresting officer.
Beyond this, DWI cases can be "aggravated". Aggravated cases carry harsher punishments and penalties. Examples of this situation would be where the BAC is .15 or more, a traffic accident is involved, a suspect refuses to take the chemical test, or for example, an attempt to evade police or flee the scene of a DWI accident.
DWI punishment in New York will depend upon whether the drunk driving arrest is for a misdemeanor or a felony. (A misdemeanor DWI / DUI case is one that can be punished by up to one year in jail; a felony drunk driving arrest may be punished for more than a year in state prison.)
Normally, a first-offense Driving While Intoxicated (DWI) case is a misdemeanor. However, if there has been a prior DWI or drunk driving conviction within 10 years of the arrest, the new charge would be a felony. This 10-year period is calculated from the date of conviction of the prior DWI case, through the date of arrest for the new DWI case.
In short, DWI arrests may result in a variety of punishments. The sentence given for a drunk driving conviction will therefore depend upon the particular DWI charge, and whether there are aggravating or mitigating factors.
New York DWI Penalties In Criminal Court Are As Follows:
Driving While Impaired By Alcohol, VTL Section 1192.1:
Considered a non-criminal "traffic infraction" which does not leave the driver with a criminal record, this is the least serious DWI / DUI offence. The penalties can range from a minimum fine of $300.00 and a maximum fine of $500.00 to up to 15 days in jail or both. However, if the driver has already been convicted of one prior DWI / DUI offense in New York, the penalty is increased to a minimum fine of $500.00 and a maximum fine of $750.00 or 30 days in jail or both. If the driver has been convicted of two or more DWI offenses in New York, then the classification of this DWI offense is changed to a misdemeanor (which does give the driver a criminal record) with a minimum fine of $750.00 and maximum of $1,500.00, plus up to 180 days in jail or both. A mandatory 90-day suspension of the driver's license to operate a vehicle will be imposed if the motorist has no prior DWI convictions. The suspension is for 6 months where the motorist does have a prior DWI conviction. However, NY courts are often willing to postpone that suspension for 20 days in order for the motorist to petition the Department of Motor Vehicles for a restricted license that will permit them to drive to and from work only.
Driving While Intoxicated, VTL Section 1192.2:
This is the standard, garden-variety drunk driving offence that is typically charged when a motorist is arrested for DWI. It is considered a misdemeanor and does constitute a crime, giving the driver a criminal record. The minimum penalty, assuming no prior convictions for DWI as a misdemeanor, is a minimum fine of $500.00 and a maximum fine of $1,000.00 or both. A term of no more than one year in a NY prison is authorized. The mandatory license revocation is for 6 months, with the same provision for a restricted license through DMV as outlined above.
DWI As A Felony Offense: When a person has already been convicted of DWI as a misdemeanor (as opposed to Driving While Impaired, a "traffic infraction") the next DWI is much more serious. If the second DWI case is for Driving While Intoxicated, most commonly brought under VTL Section 1192.2, the new charges are raised to the level of a class "E" felony. The penalties increase as well. The minimum fine is $1,000.00 with a maximum fine of $5,000.00 possible. The motorist is also more likely subject to a period of probation for 5 years or may even be incarcerated for a period of up to one and one-third to four years. In such cases, NY courts can combine the penalties imposed, depending on the circumstances. A term of 6 months incarceration with the balance of 5 years spent on probation along with the fine, license revocation and drinker/driver program is possible.