NY DWI Lawyer - FAQ's

WHAT WE LOOK FOR IN TRYING TO WIN YOUR CASE

If you have been arrested for suspicion of driving while intoxicated, (DWI) be advised there are numerous factors that can work in your favor and result in the dismissal of your case. DWI help is only one phone call away.

For a conviction to be rendered, the burden of proof is on the People of the State of New York, meaning the arresting officer and the prosecution. All aspects of the charges must be proven, which includes but not limited to proper administration of sobriety tests, chemical tests, probable cause and search and seizure protocols and following the law. Each of these human, mechanical or procedural factors are subject to error. We review all of them and determine which can work in your favor.

ARRESTING POLICE OFFICER ERROR.

The judgment of the officer who stopped you could be in error for any number of reasons. Furthermore, his administration of correct procedure after the arrest could be improper. Below are examples of what can hurt the prosecutions case and therefore help you.

THE OFFICER FAILED TO READ YOUR MIRANDA RIGHTS.

If you are taken into custody or the police question you with the purpose of eliciting an incriminating response, they must read you your rights beforehand. If he fails to read you your Miranda rights and obtain a valid waiver of these rights, then any statements obtained after arrest, as long as they are the result of officer questioning and not so-called “spontaneous, unsolicited statements”, will most likely be thrown out of court.

THE OFFICER DID NOT HAVE PROBABLE CAUSE FOR STOPPING YOU.

After the officer stops you, he may not arrest you, put you in handcuffs and take you away for administration of chemical tests unless he has evidence that the crime of drunk driving has occurred. If this happens, you are entitled to what is termed suppression hearing during which a judge determines whether the arresting officer had probable cause. At these hearings, the officer is cross-examined by us, and while the judge usually sides with the prosecution, the defense has the opportunity to expose problems with the investigation. As a result, the District Attorney often times will lessen the charge or work with us to settle the case.

THE OFFICER MISTOOK THE REASON FOR FAULTY DRIVING.

Sober drivers make mistakes all the time: inappropriately wide turns, weaving in and out of traffic, drifting out of their lanes. Drivers talk on cell phones or become distracted by the kids. The officer can mistake any of these as signs of drunk driving, when in reality they may be nothing more than unsteady driving from a merely inattentive, but sober driver.

Further, fatigue can cause a driver to exhibit these same erratic driving responses. The officer could have confused the miscues of a drunk driver with those of someone who is drowsy and exhausted.

YOU WERE STOPPED WITHOUT JUSTIFICATION.

You may not be pulled over arbitrarily by a police officer. There must be reasonable suspicion substantiated by specific articulable facts foe an officer to stop you. It this standard cannot be metin a suppression hearing, as described above, your case will likely be dismissed.

THE OFFICER MISJUDGED THE LEVEL OF INTOXICATION.

The Alcohol Behavior Research Laboratory at Rutgers University did a study, which demonstrated that police were no better at judging intoxication levels than were bartenders or social drinkers. Furthermore, none of these groups were able to judge levels of intoxication accurately more than one quarter of the time. When a prosecutor makes an appeal to the jury based on the officer’s ability in this regard, his opinion deserves to carry no special weight.

Additionally, police officers ordinarily cite smell of alcohol on the breath as proof of the suspects intoxication. Any chemist knows that alcohol (ethanol) has no odor. What causes the smell of alcohol are the other agents in the beverage. Drinking non-alcoholic beer will give the breath the odor that many officers will claim is the smell of alcohol. All that the odor of alcohol on the breath can indicate is that the suspect probably consumed some alcohol recently. It does not confirm that ones blood alcohol content (BAC) is greater than .08% level required to demonstrate legal intoxication.

THE OFFICER FOUND NO INDICATION OF MENTAL IMPAIRMENT.

Toxicologists know that a degree of mental impairment always precedes physical impairment, if the impairment is being caused by the consumption of alcohol. Police officers often report that persons they arrested were coherent in understanding and answering questions, and following directions throughout the investigation and arrest. It is well established scientifically, if mental impairment due to alcohol was not present, then it follows that neither was physical impairment due to alcohol. There may always be physical impairment stemming from any number of factors, such as sickness, injury, age, obesity, nervousness, or just a general lack of coordination. The prosecution must prove that any observed physical impairment is caused by the alcohol in question.

LACK OF CORRELATION BETWEEN SPEEDING AND DWI.

While speeding is against the law in itself, studies have demonstrated that speeding is not the correlative factor to driving while intoxicated. A speeding driver is as likely to be sober as drunk, and so speeding is not evidence that the driver is drunk. An officer alleging that he pulled a driver over for speeding as evidence of DWI maybe basing his action on invalid assumptions.

THE OFFICER MISTOOK OTHER SYMPTOMS FOR INTOXICATION.

Police use preprinted forms filing DWI reports. These contain boxes which the officers simply check off to indicate that the suspect had “bloodshot and watery eyes,” “slurred speech,” “unsteady,” and a “flushed face.” In New York State there are presently no video cameras in the police cars, so these statements are usually left unchallenged by an inexperienced DWI lawyer/ DUI lawyer.

As we all know, numerous other conditions can cause these symptoms. Allergies, exhaustion, sleeplessness or eyestrain could make ones eyes bloodshot. Anger over the traffic stop could cause ones face to flush. Embarrassment or becoming flustered could cause one to slur his or her words. Yet, the officer may not take these other causes into account, however obvious it is that these behaviors are just as likely to come from causes not related to alcohol consumption.

ERRORS INHERENT IN BLOOD AND BREATH TESTS FOR INTOXICATION.

Assuming that the test machines are in standard calibration and that the tests were administered flawlessly (a rare scenario), experts still acknowledge DWI breath tests contain an error rate of plus or minus .02%, and blood tests have a error rate of plus or minus .005%. When you add in the factors below, further questions can be raised about test results.

HEARTBURN CAN GIVE A FALSELY HIGH READING.

The breath test is designed to test the amount of alcohol present in the air in your lungs. If you suffer from heartburn, GERD (gastroesophageal reflux disease) or acid reflux, alcohol from the stomach can travel back from the stomach to the throat or mouth. When you blow into the breath test machine, what is measured in these instances is the mouth alcohol plus the air in your lungs. This can raise your reading on the test falsely by a factor of 4, meaning that an actual blood alcohol level of .04 would read as .16, double the legal limit. If you had just eaten a spicy meal and were experiencing heartburn when you took the test, you might give a very high false reading. Even a slight, unnoticeable regurgitation can result in mouth alcohol being blown on the test.

MOUTH ALCOHOL FROM OTHER SOURCES CAN ALSO AFFECT TEST RESULTS.

Mouth alcohol can come from sources other than belching or heartburn. Decaying food particles trapped between the teeth in dentures, braces, cavities or impactions will tend to form alcohol in the mouth. So would latent alcohol from having recently taken cough syrup, cold medicine, homeopathic preparations, mouthwash or used various breath fresheners.

Like alcohol burped up from acid reflux, latent alcohol in the mouth from these sources can also dramatically raise breath test levels.

THE MACHINES ALSO READ OTHER CHEMICALS.

People who work around chemicals can absorb these compounds and these may show up in lung tissue. Such things as nitrous oxide, acetonitrile, ethylene, toluene, isopropanol, if found inn the lung tissue of a DWI suspect, can give a falsely high reading on the breath test.

Recent exposure to any type of volatile fumes (gasoline, paint, lacquer, etc.) can falsely elevate test results.

A LOW CARB DIET CAN FOOL THE MACHINE.

When a person is eating a high protein, low carbohydrate diet, such as the Adkins Diet, the body produces compounds called ketones during metabolism. When a person then consumes carbohydrates, as in drinking alcohol, these ketone bodies in the blood can produce another form of alcohol, isopropyl alcohol. Most breath testing machines do not distinguish between the two even though it is only the ethanol that causes impairment. A falsely high test result can result.

If you are hypoglycemic, borderline diabetic or if you have diabetes, consumption of alcohol, even in small amounts, will cause your body to convert elevated levels of acetone into isopropyl alcohol.

YOUR BLOOD ALCOHOL LEVEL WAS STILL RISING.

When you consumed your alcohol, may have more consequences on your test reading than how much you consumed. The reason is because alcohol can take up to 3 hours to absorb fully into the bloodstream. In other words, your peak Blood Alcohol Level may come at the station house when taking the breath test and could be twice as high as your level when you were particularly if you consumed the alcohol shortly before you were stopped. Your Blood Alcohol Level may have been .07 when you were stopped but an hour later at the police station when the alcohol has been fully absorbed, the test reads .14. No law mandates a Blood Alcohol Level above .08 at a police station; it’s the level when you were driving that counts. This is another potential source of breath testing inaccuracy.

INDIVIDUAL VARIATIONS IN YOUR RATION OF BLOOD TO BREATH.

Across the general population, there is a conversion ration that breath machines use to convert a breath alcohol reading to a blood alcohol reading. The machine assigns this value at 2,100 to 1. Fundamental to breath testing, is the assumption that the subject being tested conforms to this ration. Scientists, however, have disclosed widely different ratios among individuals across the population. And, if a person’s breath-to-blood cvolnversion ratio is lower than 2,100 to 1, a breath test will reveal a blood alcohol level much higher than it actually is.

BREATHING TECHNIQUES AND TEMPERATURE CAN AFFECT TEST RESULTS.

Variances in the duration and volume of the breath sample may result in a false high or false low reading. The machine is calibrated to receive a breath sample that lasts over 10 seconds in delivery time, which usually translate to the delivery of approximately 2 liters of air. A longer breath sample may yield a much higher amount of alcohol being registered. Conversely, a shallow breath hyperventilating ,may result in mouth alcohol being blown, again giving a false high reading. Even breath temperature may affect results. The machines are calibrated to record breath blown at a temperature of 34 C., just a few degrees below normal body temperature. Even a slightly higher temperature can give a falsely higher reading. Such can occur from fever, sitting in the back of a hot squad car, exertion from dancing at a club, sitting in a hot tub and so on.

Due to various physical conditions such as chronic lung problems (emphysema, asthma, bronchitis or chronic obstructive pulmonary syndrome) or dental problems, many persons are not suitable candidates for breath alcohol testing, yet these same individuals are given breath alcohol tests day in and day out, with little regard for the physiological differences among individuals being tested by one, generic machine.

TEST RESULTS MAY BE CONTAMINATED.

Radio waves generated by any number of electronic devises such as police radios, radar guns, scanners, computers, etc., can interfere with electronic circuitry in blood or breath testing machines. Radio Frequency Interference, or FRI as it is known, can influence a breath machine and render a false test reading. While the amount of inaccuracy is difficult to determine, it nevertheless adds yet one more degree of skepticism surrounding breath alcohol tests.

A DISCONNECT MAY EXIST BETWEEN INTOXICATION SYMPTOMS AND TEST.

A test reading is only one factor in a DWI case. Sometimes the test reading is inconsistent with other evidence such as the field sobriety tests, officer reports of the suspects behavior, etc. As well, specific symptoms can be observed at different levels of intoxication and if tghe DWI suspects other indicators do not conform to what would be expected from the test results, this disconnect calls the entire case into question. That is, the expected level of impairment was not evident at the reported Blood Alcohol Level test results.

1st DWI Offense - Misdemeanor

Fine min $500 - max $1000, Jail up to 1 year
Minimum 6 month revocation

2nd DWI Offense(within 10 years) - Class E Felony

Fine min $1000 - max $5000, Jail up to 4 years
Minimum 1 year revocation

3rd DWI Offense(within 10 years) - Class D Felony

Fine min $2000 - max $10000, Jail up to 7 years
Minimum 1 year revocation

"Thanks Jonathan for helping me out so much. I was scared after getting my 2nd DWI. You helped calm me down and allowed me to start sleeping again. I hope there isn't anybody I know that will have to go through this, but if I do, I will highly recommend your services." Thanks again, Melissa D. Queens NY
"Hi Jonathan, Thank you so much for helping me with my DWI. I'm so glad that nightmare is over. You helped put my mind at ease and I felt so much better right after I spoke with you. Don't take this personally, but I hope I never have to call you again!" Carol E. Queens NY
"Jonathan, thanks again for getting my DWI charges reduced. I didn't think there was a chance of that happening. Unfortunately, I just had a friend get a DWI over the weekend. I told her who to call." Mike S. Queens NY

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NY DWI Lawyer - FAQ's

NY DWI Laws - Age 21 & Older

1st DWI Offense - Misdemeanor

2nd DWI Offense(within 10 years) - Class E Felony

3rd DWI Offense(within 10 years) - Class D Felony

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