If you have been arrested on suspicion of driving while intoxicated, be aware that there are many factors that can work in your favor and lead to a dismissal or a reduction. For a conviction, the burden of proof is on the People of the State of New York, the arresting officer and the prosecution, and every part of the case must hold up: the reason for the stop, probable cause for the arrest, the administration of the field sobriety tests, the chemical testing, and search-and-seizure rules. Each of those steps is subject to human, mechanical, or procedural error. We review all of them and identify which can work for you. Below is much of what we look for.
Challenging the stop and the arrest
The first place a DWI is won or lost is the stop and the arrest themselves.
The officer had no probable cause to arrest you
After stopping you, an officer may not arrest you and take you for chemical testing without evidence that the crime of drunk driving occurred. If that evidence is missing, a suppression hearing lets a judge decide whether probable cause existed, and where it did not, the case can be dismissed or substantially weakened.
You were stopped without justification
Police cannot pull you over arbitrarily. There must be reasonable suspicion supported by specific, articulable facts. If that standard is not met, the stop, and the evidence that flowed from it, can be challenged at a suppression hearing, and the case may be dismissed.
Your Miranda rights were not read
If you were in custody and questioned to elicit an incriminating response without being read your rights and giving a valid waiver, statements obtained after arrest (other than spontaneous, unsolicited ones) will most likely be suppressed.
The officer mistook ordinary bad driving for impairment
Sober drivers make wide turns, drift, and weave all the time, distracted by a phone or the kids, or simply tired. Fatigue produces the same cues an officer may attribute to alcohol. Unsteady driving is not proof of intoxication.
The officer misjudged the level of intoxication
A Rutgers University study found that police were no better than bartenders or social drinkers at judging intoxication, and none of those groups judged it accurately more than about a quarter of the time. And the 'odor of alcohol' proves little: pure ethanol is odorless, what an officer smells are other ingredients, present even in non-alcoholic beer. The odor shows recent drinking, not a BAC over .08.
There was no sign of mental impairment
Toxicologists agree that when alcohol is the cause, mental impairment precedes physical impairment. If the officer reports that you understood and answered questions and followed directions, that undercuts the claim that alcohol caused any physical unsteadiness, which can stem from illness, injury, age, or nerves instead.
Speeding is not evidence of DWI
Studies show speeding does not correlate with intoxication, a speeding driver is as likely to be sober as drunk. An officer who cites speeding as a sign of DWI may be relying on an invalid assumption.
Other symptoms were mistaken for intoxication
Officers check boxes on a preprinted form, 'bloodshot, watery eyes,' 'slurred speech,' 'flushed face.' But allergies, exhaustion, and eyestrain redden eyes; anger at the stop flushes the face; embarrassment slurs speech. These cues are just as likely to have innocent causes, and an experienced lawyer makes the prosecution prove otherwise.
Challenging the breath and blood testing
A chemical-test number looks like hard science, but a great deal can throw it off, even on a properly maintained machine.
Breath and blood tests have built-in error rates
Even assuming a properly calibrated machine and a flawless test, a rare scenario, experts acknowledge a breath test carries an error rate of roughly plus or minus .02%, and a blood test about plus or minus .005%. The factors below add further doubt.
Heartburn or acid reflux can inflate the reading
A breath test is meant to measure alcohol from your lungs. With heartburn, GERD, or acid reflux, alcohol can travel from the stomach to the mouth, so the machine reads 'mouth alcohol' plus lung air, which can raise a reading dramatically. Even a slight, unnoticed regurgitation can do it.
Mouth alcohol from other sources
Decaying food trapped in dentures, braces, or cavities can form alcohol in the mouth, as can recent cough syrup, cold medicine, homeopathic preparations, mouthwash, or breath fresheners, all of which can push a breath reading up.
The machine can read other chemicals
People who work around chemicals can absorb compounds that show up in lung tissue, and recent exposure to volatile fumes, gasoline, paint, lacquer, can falsely elevate a breath result.
A low-carb diet can fool the machine
High-protein, low-carbohydrate diets produce ketones, which the body can convert to isopropyl alcohol. Most breath machines cannot distinguish it from the ethanol that actually causes impairment, so a falsely high reading can result, a particular issue for people who are hypoglycemic or diabetic.
Your blood-alcohol level was still rising
Alcohol can take up to three hours to absorb fully. Your peak BAC may arrive at the station, not at the wheel, a .07 when stopped can read .14 an hour later. What matters legally is your level while driving, not at the precinct, and that gap is a real source of inaccuracy.
Your personal blood-to-breath ratio
Breath machines assume a fixed 2,100-to-1 ratio to convert breath alcohol to blood alcohol. Scientists have found widely varying ratios across individuals; if yours is lower than 2,100:1, the machine reports a blood-alcohol level much higher than your real one.
Breathing technique and temperature
The volume and duration of your breath sample affect the result, and the machines are calibrated for a breath temperature around 34°C. Fever, a hot squad car, or recent exertion can raise your breath temperature and the reading. Chronic lung conditions (asthma, emphysema, COPD) make many people poor candidates for breath testing, yet they are tested anyway on one generic machine.
Radio-frequency interference
Radio waves from police radios, radar guns, scanners, and computers can interfere with the electronics in breath and blood machines. Radio-frequency interference can produce a false reading, adding one more reason for skepticism about a single number.
The test does not match the other evidence
A reading is only one piece of a case. When the number is inconsistent with the field sobriety tests, the officer's own description of your behavior, or the expected signs at that BAC, that disconnect calls the whole case into question.
Common questions
How much does a DWI lawyer cost?
Jonathan charges a flat $1,500 for representation in a misdemeanor DWI, the entire case, start to finish, not an hourly meter. Court fines, the state surcharge, DMV fees, ignition interlock, and program costs are set by the State and the court and are separate from the legal fee.
Is a first DWI a crime in New York?
Usually yes: a first DWI (.08+) is a misdemeanor, which is a crime that stays on your record. A first DWAI (.05 to .07) is a traffic violation, not a crime. A common goal of a first-offense defense is a reduction from DWI to DWAI.
Will I lose my license?
Your license is typically suspended at arraignment when the reading is .08 or higher, and a conviction brings a mandatory revocation. But a hardship privilege early on and then a conditional license through the Impaired Driver Program can keep you driving in the meantime.
What happens if I refused the breath test?
Refusal carries its own DMV penalty, at least a one-year revocation and a $500 civil penalty, even if the DWI is dismissed, plus a DMV refusal hearing where the officer must prove several specific elements. That hearing is a real opportunity for an experienced attorney.
When can I reach Jonathan?
Any time. Jonathan is available 24 hours a day, answers his own phone, and calls back every number he sees on his caller ID. When you call (516) 790-6618, you speak directly with the lawyer who will handle your case.