How Much Does a NY DWI Attorney Cost?

Allow me to answer your question with a few questions of my own (I am a lawyer after all):

What’s more important to you: Saving a few bucks on a cheap(er) attorney?  Or keeping your driver’s license?  Keeping your job?  Protecting your future?  Keeping your freedom?

An attorney’s fee is obviously a very important consideration when deciding who should represent you in your DWI case (or any criminal case for that matter).  But that’s all it should be, a consideration.  To hire an attorney based on fee alone may be the biggest mistake you could ever make in your life.   And if you make the wrong choice, it could very well cost you some of the most important things in your life.   It’s your life.  You should want to fight for it and do what needs to be done to have the best opportunity to protect it.

That doesn't mean you should run out and hire the most expensive attorney you can find thinking that by handing over your life savings your case will automatically be dismissed!  But it does mean you shouldn't balk at the attorney who has a slightly higher fee than others.  Instead, ask yourself why they charge more.  Check that.  Ask the attorney why he or she charges more!  If they can’t give you a legitimate explanation, well, then grab your coat and hat and get the hell out of there.   

But any acceptable explanation should educate you as the potential client as to that particular attorney’s experience as a DWI defense attorney.  Note that I said experience specifically as a DWI defense attorney, not just experience as an everyday “defense attorney”.  Remember Venn Diagrams from school?  Think of it like that:

All DWI defense attorneys are criminal defense attorneys; but not all criminal defense attorneys are DWI defense attorneys.

An attorney who has more experience defending DWI clients should charge a little more than another attorney who doesn’t have so much experience, don’t you think?  All of those years of experience are valuable; they’re worth something, not just to the attorney, but to you as the client! 

• Experienced DWI defense attorneys know what to look for; they know where the potential problems are and where potential points may be scored against the prosecution.  
• They know the Assistant District Attorneys who prosecute DWI offenses; which ones negotiate and how best to do it. 
• They know the individual judges and their personal policies and pitfalls with respect to DWI cases.
• They know the arresting officers, not just from seeing their names on the paperwork, but from interacting with them at hearings and trials; they know how the officers will react on the stand. 
• They know how chemical test machines work, what the potential problems with the machines are, and what all those pages with all the little numbers all over the place mean (and what the little numbers themselves mean!).
• They know how each consequence of each conviction or disposition will affect every client. 
• They understand and can explain to you what actions the DMV will take in certain circumstances and how that might affect your overall case.
• They know how to handle a refusal and what happens at a refusal hearing, and how the result of that hearing will affect your criminal cases.
• And countless other nuances to DWI defense that the unfamiliar attorney who merely dabbles in DWI defense will never understand. 

All of that experience and knowledge significantly increases your chance of getting a decent resolution (although, as with all things in life and Vegas, there is never a guarantee).

So, really, wouldn't you want the person who knows more than the other guy about something that can quite possibly affect the rest of your life?  And those few extra dollars you spend now on the attorney worth his or her salt in DWI defense could actually end up saving you hundreds and possibly thousands of dollars at the conclusion of your case.

The DWI defense attorneys at Catalano & Carpenter LLP strive to provide exemplary service to all of our clients, DWI and otherwise.  Sure, sometimes we’re a little more expensive than some other attorneys in the area (and sometimes we’re not), but no matter what the fee or the case, our clients can rest assured they are receiving the highest service we can possibly provide. 

If you or someone you care about has been charged with DWI, call the experienced DWI defense attorneys at Catalano & Carpenter LLP at (845) 454-1919 today or visit us at www.CatalanoCarpenter.com to schedule a free no obligation consultation.

Underage DWI and New York Zero Tolerance Laws

If you’re under 21 at the time of your arrest for an alcohol-related driving offense, the penalties for a conviction may vary greatly from the same conviction for someone over 21.  That only makes sense tho, right? The law says you can’t drink at all. So by drinking and driving, you’re breaking even more laws than the person over 21 who also made the poor choice to drink and drive!  But believe it or not, your age may actually work to your advantage if you do get arrested for DWI under 21!

Generally speaking, there are two ways an underage DWI can go down: it can be handled 1) in the criminal courts (as an underage/possible youthful offender), or 2) at the administrative/DMV level (as a Zero Tolerance violation).  This blog entry discusses only Zero Tolerance laws.        

How your case is ultimately resolved will depend on many factors, including what you are initially charged with, obviously!  A violation of the Zero Tolerance Law (VTL 1192-a) is a chargeable offense (if your BAC at the time you were driving was between .02 and .07).  However, most law enforcement agencies (at least most of the ones I deal with on a regular basis) rarely, if ever, charge a violation of 1192-a.  They will instead issue a violation of Driving While Ability Impaired (DWAI) in violation of VTL 1192(1) and let the chips fall where they may.  In that situation, it is up to your attorney to convince the prosecutor why you should be granted the enormous break of a Zero Tolerance adjudication rather than an alcohol related conviction. 

So what is so great about a Zero Tolerance adjudication?  Plenty!  Below is a list of just what a Zero Tolerance adjudication involves in terms of penalties and other sanctions.  Keep in mind this list applies only to Zero Tolerance adjudications (not criminal convictions).  

Prompt Suspension Law (“suspension pending prosecution”)

In the case of underage offenders charged with a violation of VTL 1192(1) – DWAI – only, the court will suspended the person’s license/permit/driving privileges at the first appearance (as opposed to a person over 21 who cannot be suspended pending prosecution unless there is proof of a BAC of .08 or higher, i.e., DWI or Aggravated DWI only).

Conversely, the license/permit/driving privileges of a person charged with a violation of VTL 1192-a (the Zero Tolerance Law) only cannot be suspended at arraignment, or where your attorney has worked out a Zero Tolerance resolution with the prosecutor prior to your first appearance. (Clearly then it is to your advantage to call us immediately after your arrest to provide us an opportunity to resolve your case prior to arraignment).

Zero Tolerance Penalties/Sanctions

First Offense

• NOT a criminal conviction;
• License/permit/driving privileges suspended for 6 months;
• If a refusal (first offense), revoked for at least one year;
• Registration may be suspended for 6 months;
• $125 civil penalty;
• Likely eligible for Drinking Driver Program (DDP) and a conditional license; and
• Successful completion of DDP may result in early termination of 6 month suspension

Second Offense***

• NOT a criminal conviction;
• License/permit/driving privileges revoked for at least one (1) year or until the person reaches the age of 21, whichever is longer;
• If a refusal (second offense); revoked for at least one (1) year or until the person reaches the age of 21, whichever is longer;
• Registration may be revoked for at least one (1) year or until the person reaches the age of 21, whichever is longer;
• $125 civil penalty;
• NOT eligible for DDP or conditional license.

***Keep in mind, however, that if you’ve already been permitted one Zero Tolerance adjudication by the prosecutor, the odds of a second within such a short period of time are very slim!

Records are Sealed/Destroyed

All records of a Zero Tolerance adjudication are deemed destroyed after 3 years from the date of a hearing resulting in a Zero Tolerance finding or entry of waiver of hearing, or when the person reaches the age of 21, whichever is longer.

The attorneys at Catalano & Carpenter LLP have obtained Zero Tolerance adjudications for many drivers under the age of 21 who were initially charged with violations of VTL 1192. If you are under 21 and have been arrested for an alcohol related driving offense, call us today to discuss your options and whether you may be appropriate for a Zero Tolerance adjudication (please note that if your BAC is anywhere near your age, you’re not getting a Zero Tolerance offer, plain and simple; but other favorable dispositions may still be available).  

A Zero Tolerance adjudication is a great resolution in those cases where a dismissal, ACD, or plea to a lesser traffic violation is not warranted or possible (which is the case in many if not most DWI prosecutions).  The knowledgeable and skilled DWI defense attorneys at Catalano & Carpenter LLP know the ins and outs of obtaining a Zero Tolerance offer.  If you have been arrested for an alcohol related offense and are under 21, call us today at (845) 454-1919 or visit us at www.CatalanoCarpenter.com to schedule a free consultation.  The sooner you call the sooner we can help.

For more information about Zero Tolerance Laws and penalties, visit the following sites:

Safe NY - http://www.safeny.ny.gov/zero-tol.htm

NYS DMV - http://dmv.ny.gov/tickets/penalties-alcohol-or-drug-related-violations

Driving While Intoxicated (DWI) in Violation of NYS VTL Sec. 1192.3.

Driving While Intoxicated.     No person shall operate a motor vehicle while in an intoxicated condition.

NY VTL 1192.3.

Although this may seem like a pretty straightforward law (don't drive while intoxicated!), proving someone has violated it is really not that simple.  Most DWI defense attorneys chomp at the bit when a lone 1192.3 charge comes through the door because there's no BAC to cause headaches.

BAC's are bad.  Juries love BAC's..."A computer says that the BAC was .10, so it must be accurate, and the defendant must be guilty!"...says the jury.

And even tho DWI defense attorneys should, at a minimum, attempt to discredit a chemical test result/machine when there is a BAC, at the end of the day juries are reluctant to disregard what they consider to be hard evidence of intoxication unless there was proof of a malfunction or some other bona fide error.

But you don't have to deal with that on an 1192.3 charge!  The fertile ground to explore in a VTL 1192.3 charge is the subjective observations of the arresting officer and any other witnesses.  To a criminal defense attorney, that's good stuff! But what does that mean?

Opinion! That's what that means.  Although a major factor in an 1192.3 arrest is the driver's performance on the Standardized Field Sobriety Tests (which aren't really very standardized), it should also be based upon the arresting officer's overall opinion (formulated from his or her entire observations) that the driver is intoxicated.  Think about that for a second.  The arrest is premised upon the observations of a person who (in most cases) has never met the driver before; has no idea how the driver looks, behaves or moves on any given day.

Obviously, if a driver has to clear the beer cans from his lap before he pours himself out of the car and throws up clear vodka on the officers shoes, that may be a bit of a no-brainer.  But that's not the typical situation (I hope!).

With regard to all DWI stops (for 1192.2, 1192.3 or otherwise), the officer is trained to observe the driver from the instant contact is made (meaning, once they come into contact with the vehicle, not necessarily the driver).  They will watch for erratic operation or a violation of a traffic law (or worse) and use that as the basis to initiate the stop.  The officer will observe when and how the vehicle responds to the direction to pull over.  After the officer arrives at the vehicle, observations through the door/window are being made of the driver's physical appearance, eyes, odor, speech and motor coordination; observations of how the driver exits the vehicle, and ultimately how the driver performs on the Standardized Field Sobriety Tests (SFSTs).  And if there's no BAC (and there wouldn't be for just an 1192.3 charge), that's the prosecutor's entire case, ladies and gentlemen!***

And what fun a skilled DWI defense attorney can have cross-examining the arresting officer about his or her subjective opinions, subjective application and interpretation of the SFSTs (physical tests requiring movement and coordination not normally engaged in by the every day driver), and the officer's subjective state of mind (before any probable cause has been established) as s/he pulled someone over at 2:00 AM on a Friday night for an innocuous speeding violation.

(*** Generally in a case where the only DWI related charge is an 1192.3, it may be because the driver refused to provide a sample for chemical test analysis (i.e., a "refusal").  In that case, there are certain consequences of the refusal that come into play at the criminal trial.  Specifically, in most circumstances the jury may be given a "refusal charge," which permits to prosecutor to inform the jury that the driver's refusal to provide a sample was a conscious decision because the driver knew he or she would fail the test, i.e., "consciousness of guilt."  That can be difficult to contend with at trial, but not impossible.  Similarly, there will be the civil consequences of a refusal; that topic is dealt with in a previous entry.)

Cases charging just a violation of 1192.3 occur a lot.  And although they are typically hampered by a related refusal charge, the skilled DWI defense attorneys at Catalano & Carpenter LLP know how to effectively challenge the evidence of an 1192.3 arrest, minimize or leverage the refusal, if one exists, and in many cases are able secure a pre-trial plea or trial verdict of a DWAI violation or other non-criminal resolution.

No matter the charge, a DWI arrest is serious and can result in serious and immediate consequences.  If you have been arrested for any DWI offense, call the knowledgeable and experienced DWI defense attorneys at Catalano & Carpenter LLP today at (845) 454-1919, or visit us online at www.CatalanoCarpenter.com to schedule a free consultation.

NYS VTL 1192.2-a(a). Aggravated Driving While Intoxicated

(a) Per se. No person shall operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person's blood as shown by a chemical analysis of such person's blood, breath, urine or saliva made pursuant to the provisions of section 1194 of this article. 

(b) With a child. No person shall operate a motor vehicle in violation of subdivision 2, 3, 4 or 4-a of  this section while a child who is 15 years of age or less is a passenger in such motor vehicle. 

NY VTL 1192.2-a.

Aggravated DWI in NY comes in two forms: (1) driving with a BAC of .18 or higher, or (2) driving while intoxicated or impaired by drugs with a child under 16 years old in the car.

However, while a first offense of subdivision (a) is a misdemeanor, a first offense of subdivision (b) is an automatic felony (and the subject of another post), regardless of how squeaky clean your criminal or driving history may be.

A charge of misdemeanor aggravated DWI will result in the suspension of your driving privileges at arraignment, the very first court appearance, before you have been found guilty of anything.  And the penalties for an actual conviction of misdemeanor aggravated DWI are significant.

Penalties

First Offense

• Punishable by a fine of between $1,000 to $2,500, up to one (1) year in jail, or both a fine and jail;
• Possible probation;
• Mandatory state surcharge/fees of $400; 
• License/driving privileges revocation of one (1) year;
• Driver Responsibility Assessment fee of $750; and 
• Ignition Interlock Device ("IID") installed and maintained at defendant's expense for no less than 6 months.

A person convicted of aggravated DWI will most likely also be required to complete various programs (e.g., Victim Impact Panel ("VIP") and Drinking Driver Program ("DDP")), as well as an alcohol and/or substance abuse evaluation, all at the defendant's expense. 

Second Offense (more than 10 years from prior any DWI conviction)

• Punishable by a fine of between $1,000 to $2,500, up to one (1) year in jail or both a fine and jail;
• Possible probation;
• Mandatory state surcharge/fees of $400;
• License/driving privilege revocation of 18 months;
• Driver Responsibility Assessment fee of $750; and 
• Ignition Interlock Device ("IID") installed and maintained at defendant's expense for no less than 6 months.  

A person convicted of aggravated DWI will most likely also be required to complete various programs (e.g., Victim Impact Panel ("VIP") and Drinking Driver Program ("DDP")), as well as an alcohol and/or substance abuse evaluation, all at the defendant's expense. 

Second Offense Within 5 Years

A second DWI offense within 10 years of a prior DWI related conviction would most likely be charged as a class E felony,subject to higher fines and up to 4 years in state prison.  The experienced DWI defense attorneys at Catalano & Carpenter LLP may be able to avoid a felony conviction in certain cases (if the charge can't be beaten altogether), in which case the defendant would be subject to the typical second misdemeanor offense penalties above, but with the additional penalty of

• Either 5 days in jail or, alternatively, 30 days of community service. 

Third or Subsequent Offense Within 5 Years

Likewise, a third or worse DWI offense within a 5 year period would most likely result in a charge of DWI as a class D felony, again, punishable by even higher fines and up to 7 years in state prison.  A successful reduction of such a felony to yet another misdemeanor conviction would similarly result in the same penalties as a second misdemeanor offense within 5 years, but this time with:

• Either 10 days in jail or, alternatively, 60 days of community service. 

Any charge of DWI, aggravated, felony or otherwise, can be devastating to both the defendant and the defendant's family.  And those consequences can be felt immediately after the arrest.  It is therefore critical that anyone charged with an alcohol related driving offense speak with an experienced and knowledgeable DWI defense attorney immediately. 

The DWI defense attorneys at Catalano & Carpenter LLP have established a reputation for aggressively and successfully defending and protecting the rights of individuals throughout the Hudson Valley charged with alcohol related driving offenses. 

If you are charged with any alcohol related driving offense, call the experienced DWI defense attorneys at Catalano & Carpenter LLP today at (845) 454-1919 to schedule a free consultation, or visit us online at www.CatalanoCarpenter.com. 

Driving While Intoxicated (DWI) in violation of NYS VTL Sec. 1192.2

Driving while intoxicated; per se.             No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article.

NY VTL 1192.2.

This is the DWI offense charged when you provide a sample of your blood, breath, urine or saliva for a chemical test, typically at the police station (not as a result of blowing into the little box on the side of the road) and the result is a .08 BA or higher.  So, if you don’t provide that sample for the chemical test, you cannot be charged with a violation of 1192.2.  Be advised, however, there are alternative consequences to not providing a sample, i.e., refusal hearings and revocations, and in some instances the court can order a compulsory blood draw for chemical test purposes.  Alternatively, if you do provide a sample and the BAC is .18 or higher, you will be charged with a violation of 1192.2-a(a), Aggravated DWI, instead of 1192.2.

An 1192.2 charge will also almost certainly guarantee that your license or NYS driving privileges will be suspended pending prosecution at your arraignment.  The court may grant you a hardship privilege at that time, and if you’re eligible, you may apply for a conditional license after 30 days.

A “first offense” conviction of 1192.2 is a misdemeanor, a criminal conviction, and will result in a criminal record.

Penalties

As long as the instant offense is not a second (or more) DWI (either an 1192.2, 1192.2-a, 1192.3,1192.4 or 1192.4-a) within 10 years, it will be a “first offense” DWI, a misdemeanor, subject to the following penalties:

First offense

• Misdemeanor;
• Punishable by a fine of between $500 and $1,000, up to one (1) year in jail, or both fine and jail;
• Possible probation;
• Surcharge of $400;
• DMV driver responsibility assessment of $750;
• Installation of the Ignition Interlock Device (IID) for at least 6 months; and
• License or NYS driving privilege revocation for at least 6 months.

You will most likely be required to attend and complete various programs and classes (DDP and/or VIP), as well as alcohol or substance abuse screening, all at your expense.

Second offense

• Misdemeanor;
• Punishable by a fine of between $500 and $1,000, up to one (1) year in jail, or both fine and jail;
• Possible probation;
• Surcharge of $400;
• DMV driver responsibility assessment of $750;
• Installation of the Ignition Interlock Device (IID) for at least 6 months; and
• License or NYS driving privilege revocation for at least 1 year (or 18 months where prior conviction was for 1192.2-a).

You will most likely be required to attend and complete various programs and classes (DDP and/or VIP), as well as alcohol or substance abuse screening, all at your expense.

Second offense within 5 years

A second offense within 10 years of a previous DWI conviction for either 1192.2, 1192.2-a, 1192.3,1192.4 or 1192.4-a may be charged as a felony DWI, in this case, E Felony DWI, subject to much more substantial penalties than a misdemeanor.  The possibility exists, however, that even a felony DWI charge may be reduced to a misdemeanor.  In that case, the penalties for this second offense will typically be the same as a first offense, with the addition of:

• Either 5 days in jail or, alternatively, 30 days of community service.

Third or subsequent offense within 5 years

Again, a serious possibility for a felony charge exists under these circumstances, in this case, D Felony DWI.  However, in the event the matter ends up being resolved with yet another misdemeanor DWI, the same penalties as a first offense would apply, with the addition of:

• Either 10 days in jail or, alternatively, 60 days of community service.

There are many important things to look for with regard to an arrest for 1192.2, beginning with the initial consultation.  An experienced DWI attorney will know what those things are and how to use them to your advantage.

And although a regularly calibrated and well-maintained machine produced a reading of .08 or more, there may still be ways to call into question the operability of the machine or even the qualifications (or lack thereof) of the breath test machine operator.  This all goes to the creation of reasonable doubt.  Machines are good, but not infallible.  

As with all alcohol related driving offenses, the consequences of not just a conviction but the arrest itself can be devastating.  It is therefore critical that anyone arrested for and charged with any violation of VTL 1192 contact a knowledgeable and experienced DWI attorney immediately.

The attorneys at Catalano & Carpenter LLP have established a reputation for aggressively and successfully defending and protecting the rights of individuals throughout the Hudson Valley charged with alcohol related driving offenses.  If you or someone close to you has been charged with any alcohol related driving offense, call Catalano & Carpenter LLP today at (845) 454-1919 for a free consultation, or visit us online at www.CatalanoCarpenter.com.  

Driving While Ability Impaired (DWAI) in violation of NYS VTL Sec. 1192.1.

No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol.

NYS VTL Sec. 1192.1.

While there is no statutory provision defining what BAC constitutes impairment, the general rule is that a person is DWAI if they have a BAC of more than .05 but less than .07, or there is other evidence of impairment.

The “other evidence of impairment” is essentially a catch-all provision.  Because alcohol affects everyone differently, a driver may have a BAC of only .04, or even a .03, but still be “impaired” under the law, and therefore subject to prosecution.  A person’s ability to operate a motor vehicle is “impaired” by alcohol when the physical and mental abilities which such person is expected to possess in order to operate a vehicle as a reasonable and prudent driver are impaired to any extent. 

“To any extent” is a subjective determination made by the arresting officer (or any other witnesses) and will typically be based upon any of the following:

• the defendant’s physical condition and appearance, balance and coordination, and manner of speech;
• the presence or absence of an odor of alcohol;
• the manner in which the defendant operated the motor vehicle;
• opinion testimony regarding the driver’s sobriety (usually based on performance of field sobriety tests); and
• the circumstances of any accident. 

If a BAC was obtained, that will obviously be a consideration, as well.

Penalties

Provided the instant offense is not the third (or more) such offense within the 10 years, a DWAI conviction is a traffic infraction.  A traffic infraction is not a crime.  However, the third or subsequent such offense within a 10 year period will be deemed a misdemeanor, which is a crime and may result in a criminal conviction/record.

The penalties for a DWAI conviction are as follows:   

First offense

• Traffic infraction;
• Punishable by a fine of between $300 and $500, or by up to 15 days in jail, or both a fine and jail;
• Surcharge of $260;
• DMV driver responsibility assessment of $750; and
• License or NYS driving privileges will be suspended for 90 days (unless you are under 21 or possess a CDL). 

Second offense within 5 years

• Traffic Infraction;
• Punishable by a fine of between $500 and $750, or by up to 30 days in jail, or both a fine and jail;
• Surcharge of $260;
• DMV driver responsibility assessment of $750; and
• License or NYS driving privileges will be revoked for at least 6 months. 

Third or subsequent offense within 10 years

• Misdemeanor;
• Punishable by a fine of between $750 and $1,500, or by up to 180 days in jail, or both a fine and jail;
• Surcharge of $400;
• DMV driver responsibility assessment of $750; and
• License or NYS driving privileges will be revoked for at least 6 months.

Depending on the specific circumstances of your case, you may will also be required to attend and complete various programs and classes (DDP and/or VIP), as well as alcohol or substance abuse screening, all at your expense.

Although only a non-criminal traffic infraction, a conviction for even a first offense DWAI can be devastating; from paying high fines along with the associated collateral expenses (e.g., attorney’s fees, programs and screening costs) to prolonged license revocation to possible loss of employment.   However, because a DWAI arrest may be based on so many subjective factors, there may be substantial opportunity to negotiate a plea to a reduced offense or beat the charge entirely at trial. It is therefore critical that anyone arrested for and charged with a violation of DWAI (VTL 1192.1) contact a knowledgeable and experienced DWI attorney immediately.

The attorneys at Catalano & Carpenter LLP have established a reputation for aggressively and successfully defending and protecting the rights of individuals throughout the Hudson Valley charged with alcohol related driving offenses.  If you or someone close to you has been charged with any alcohol related driving offense, call the Catalano & Carpenter LLP today to schedule a free consultation at (845) 454-1919, or visit us online at www.CatalanoCarpenter.com.

     

Implied Consent and New York DWI Laws

Most people don’t realize that by just hopping into the car to run to the store or drive to work they have actually made an agreement with the state of New York (other than to not drive like an a**hole…an agreement violated with far too much frequency, btw).  By getting behind the wheel, you as the driver have agreed to consent to a chemical test in the event you are stopped by a police officer who might suspect that you are driving while intoxicated or impaired. This is the law of “implied consent,” and specifically states that:

Any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test of one or more of the following: breath, blood, urine, or saliva, for the purpose of determining the alcoholic and/or drug content of the blood provided that such test is administered by or at the direction of a police officer with respect to a chemical test of breath, urine or saliva or, with respect to a chemical test of blood, at the direction of a police officer:

           (1)    Having reasonable grounds to believe such person to have been operating in violation of any subdivision of [VTL 1192] of this article and within two hours after such person has been placed under arrest for any such violation.

NY Vehicle and Traffic Law Sec. 1194(2)(a).

What exactly does this mean?  It means that if you refuse to provide that sample when legally requested, you could be subjected to civil penalties and sanctions (see my previous entry re: chemical test refusals).  It also means that in the event you are unconscious (after an accident or perhaps some sudden onset of a medical emergency), the police can just take your blood without a peep from you or anyone else! Why? Because you’ve given that implied consent by driving in New York in the first place!

Now that doesn’t mean the police can just drive around with a needle at the ready and jam it into anyone’s arm who they might find in the unfortunate state of unconsciousness behind the wheel.  In order for the implied consent law to come into play, the officer must have “reasonable ground” (i.e., probable cause) to believe that you have been operating in violation of VTL 1192, that is, driving drunk, drugged or impaired. The test must also be administered within two hours of the time of arrest.  If either of those requirements is not satisfied, a competent DWI defense attorney (appearing before a reasonable judge) should be able to have the results of the blood test suppressed.

Note that taking a sample for a chemical test pursuant to implied consent is different than a compulsory blood test (a topic for the next article!).

     If you have been arrested and charged with DWI, contact the experienced, knowledgeable and proven DWI defense attorneys at Catalano & Carpenter LLP today for a free consultation at (845) 454-1919, or through us online at www.CatalanoCarpenter.com.

I was arrested for DWI. Why did I get charged with DWI twice?

If you were recently arrested for DWI, let me say that I’m sorry you have to go through this.  But this is no time to wallow in self-pity. The consequences of even the DWI arrest itself can be catastrophic for you.  So it is imperative you speak to an experienced DWI defense attorney immediately to protect yourself and your rights.  

So now that the dust has settled and you've had a chance (or finally forced yourself) to sit down and actually look through the fistful of papers you were given on the night (or early morning) in question, you’ve probably noticed that you were given two separate tickets for two different DWI charges (assuming you provided a chemical test sample at the station).  Before you react in one of two typical ways – 1) you get excited thinking you’re going to beat this on a technicality because they issued wrong/too many tickets, or 2) you’re overcome with a sense of dread because you've been charged with two DWI’s – just take a deep breath and read on.  Although the second reaction above is unfortunately the more correct one, it does not mean the end of the world or that you’re screwed x 2.

Yes, you have been charged with two separate counts of DWI.  The first accuses you of driving with a blood alcohol content (BAC) of .08 or more in violation of NYS VTL 1192.2.  This is called per se DWI; “per se” very loosely translated means “it is what it is.” You do not need to show any signs of impairment to catch this charge.  If you blow at the station and the result is a BAC of .08 or higher, boom…here’s your 1192.2 ticket.

The second ticket charges you literally with “driving while intoxicated”, in violation of NYS VTL 1192.3.  That simply means that based on the arresting officer’s subjective opinion, you were driving while your ability to do so as a reasonably safe and prudent person was impaired by alcohol.  For example, you were all over the road, reeked of booze, and failed in glorious fashion every single field sobriety test that was administered to you…the hat-trick.  So if you are pulled over and arrested for DWI but refuse to provide a chemical test sample, rest assured you will still be issued a ticket for 1192.3.

As I said, these two charges – despite both accusing you of DWI – are in fact two separate and distinct offenses.  The evidence required to convict on one is different from the other.  And should your matter proceed to trial, you can indeed be convicted of one and beat the other, be convicted of both, or beat both.  Most plea bargains, however, will only require that you plead guilty to one count (or, ideally, one reduced count) to cover the other.  So at the end of the day, you’ll stand convicted of only 1 charge instead of two; thus the incentive to take a plea in some cases.  

Defending DWI charges is a complicated matter requiring knowledge and application of difficult scientific principles in addition to a thorough understanding of the DWI laws themselves and all collateral non-criminal consequences.  If you find yourself in the unfortunate situation of being charged with DWI, call the experienced DWI defense attorneys at Catalano & Carpenter LLP today at (845) 454-1919 to schedule a free consultation, or visit us online at www.CatalanoCarpenter.com.

The NYS DMV denied my license re-application. Now what?!

I've fielded a lot of phone calls over the last few months from people who have been caught up in the “new” DMV regulatory rigmarole and have been denied driving privileges after they re-applied. So this quick little article is for all those out there who I haven’t been able to speak to directly and explain what your options are…if any.

The scenario typically plays out something like this:

You were convicted of an alcohol related driving offense a rrreeeaaallllly long time ago (say, October 2011).

When you agreed to plead out to whatever offense you pleaded to (e.g., DWI - .08% or more BAC), you were advised that your license would be suspended for a specified period of time, like 6 months, or 1 year for an Aggravated DWI or because of a prior or some other aggravating factor.

You dutifully served your suspension without incident, and I’ll be damned if you didn't learn your lesson and swore off the “evils of alcohol” altogether and readied yourself for your new and prosperous life once you get your license back and are able to feel like a citizen of the 21^st century again!

So, at or near the termination of your suspension period - and with excitement and relief – you reapply for your license according to very instructions provided you by the DMV, following every letter with meticulous attention.

Or maybe you’re one of the countless souls who procrastinated in reapplying for your license because you were fortunate enough to just not really need it back right away (even tho you were eligible to reapply back in 2011).

So in goes the application….your hand extended, grinning ear to ear, eager to receive your temporary license back in return and begin anew….

WHAM! The DMV denies your application! And not only did they deny it, they did so with a vengeance! You were told that you couldn't reapply for your license again for another 5 years! Or worse: you can NEVER reapply!

In astonishment you stare back at the clerk, mouth agape, and manage only to blurt out (quite possibly at the top of your lungs with a raspberry red face)…..”WTF?!?!”

You are now a victim of the notorious “new” DMV regulations. Welcome to the club! You’re not alone.

So what do you do now?

If you have any desire to attempt to reverse the DMV’s determination to deny your application and possibly regain your driving privileges in the future, you MUST follow a very specific course of action within a very short timeline. Stewing in anger for a few days or weeks before taking action is not an option for you here.

The DMV will issue you a written decision denying your application. The end of that letter will advise you that you only have 60 DAYS from the date of that decision to file your administrative appeal with the DMV, should you wish to do so (I’m assuming you probably wish to do so).

There are very specific arguments that should/can be made in this appeal (“I haven’t had a sip of booze in 1 year and I need my license to keep my job, and oh yeah, this is total effin bullsh*t!!!” is not a worthwhile argument, I promise you). You would be wise to consult an attorney at this stage.

In all honesty, the odds of having any success with this appeal is pretty much non-existent (you’re asking the DMV to reverse itself, so good luck with that!). But this step MUST be taken in order for you to be able to proceed to the next step of filing what’s called an “Article 78” in state Supreme Court.

The Article 78 is your opportunity to get your case in front of an actual judge who will consider more or perhaps just broader arguments than you may have been able to include in your administrative appeal, like ex post facto and constitutionality issues. However, as with the admin appeal, the Article 78 also has a very short timeline.  

The Article 78 petition must be filed within 4 MONTHS of the final DMV decision denying your administrative appeal.  And I can tell you first hand, 4 months goes by a lot faster than you might think. An Article 78 is extensive and requires a lot of research and work and is just generally very time consuming to prepare. You should absolutely hire an attorney experienced with Article 78 petitions of this nature. And your attorney will thank you very much for giving him or her as much time as possible to prepare the petition; whereas your case may be flat out rejected by a multitude of attorneys if you wait until the 11^th hour (i.e., 3 months and 25 days) to find someone willing to handle it for you.

If you fail to meet either of these deadlines, you’re totally out of luck. You’re only real hope at that point is to pray that the entire DMV “new” regulatory system is eventually ruled unconstitutional and everyone affected gets their license back. Any thoughts on how long something like that can take?

The Article 78 stage is where the vast majority of these cases are holed up now, and decisions are just starting to trickle out. So while you are required to get your appeal and Article 78 petition filed tout suite, getting an actual decision can take a while (hurry up and wait!). All the more reason to start the ball rolling on your appeal and petition as soon as possible!! We’ll talk about what happens after that, if necessary, another day.

Your time to appeal a DMV decision can be very short, often 30 or 60 days.  If your license application has been denied by the DMV for any reason, call the knowledgeable attorneys at Catalano & Carpenter LLP today at (845) 454-1919 for a free consultation, or visit us online at www.CatalanoCarpenter.com. 

You Do Not Have to Perform Field Sobriety Tests (FSTs) During a DWI Stop

It occurred to me that over the course of the countless DWI cases I've defended, the issue of whether or not to take the FSTs has rarely come up.  Sure, clients ask all the time, “should I have refused the chemical test?”  But no one really ever asks if they should have refused the FSTs.  So I have to presume that’s because most people don’t realize that they can.  Well, I am happy to inform everyone (at least in NYS) that you do not have to perform the FSTs just because the officer asks you to!  

There is no law, rule, regulation or whatever in NYS that requires a driver to comply with an officer’s request to take FSTs  (note, however, that refusing to take the roadside breath test [which is not an FST] is a traffic infraction). What does this mean? Just what it says! If you’re in the unfortunate circumstance of finding yourself standing outside of your vehicle – often in the dark of night and bitter cold, with cars whizzing past you while a well-trained and armed civil servant tells you to “follow the tip of the pen” or “stand heel to toe (without moving!) while I give you these instructions” or to perform some other circus monkey-like feat, you have the right to say no – or nothing at all, for that matter – and refuse to perform any of the tests.

Why would you want to do this, you ask?  I’m not saying you would (mostly because I’m not really allowed to give legal advice in this sort of forum); I’m just saying it’s an option.  Every case is different, and you know yourself and your abilities better than anyone else; so the decision is yours as to whether or not to perform the tests.  But, as with most issues in a DWI case, there are pros and cons to whatever you decide to do…or not do.

The purpose of the FSTs is to assist the arresting officer in establishing probable cause to determine whether the driver was operating the vehicle in violation of VTL 1192 (impaired or intoxicated) and make a subsequent arrest. The presumption is that if you fail these tests of physical wonderment, you are clearly too intoxicated (or at least too impaired) to drive a car.  So refusing to take these tests may make it more difficult for the arresting officer to determine (legally anyway) whether you were impaired.  Keep in mind, however, the officer is making observations of you and taking notes from the time s/he decides to pull you over; so if you’re all over the road for 4 miles and pour yourself out of your car with an open container in your hand after you eventually pull yourself over onto someone's front lawn taking out the treasured garden gnome and maybe the corner of the front porch in the process, well, refusing to take the FSTs may not help you out that much in the big picture.

FSTs and the administration thereof are subject to mistakes and errors in interpretation by the arresting officer.  And my personal opinion for the ability (or inability) of the tests to actually determine intoxication aside, the fact is that the tasks you are asked to perform are nothing like other physical activities in which you may regularly engage (Sure! I routinely stand on one leg with my hands at my side for prolonged periods of time every day at work! Who doesn't?).  Moreover, even if you do fail all three of the standardized tests (HGN, Walk and Turn and One Leg Stand – the only “reliable” tests), it’s still not a 100% certain that you are intoxicated (more like only 80% certain; what is that, like a “B” in school? “B-“ maybe?  No one’s making the honor roll with low B’s, I can tell you that!).  The tests are simply indicators of intoxication.  So perhaps by not performing these highly subjective tests you may take away a weapon that the prosecutor can use against you to show you were driving while intoxicated.

But of course, there is always a price to pay for your decision! If you do refuse to take the FSTs, the prosecutor can introduce your refusal as evidence against you at your DWI trial, as an inference that you knew you were intoxicated so refused to take the tests to try to protect yourself.  So you may want to remember that before you start thinking you’re going to outsmart the system if, god forbid, you're ever facing the working end of a DWI arrest.  But you may want to keep this in mind, too: “the inference of intoxication arising from failure to complete the tests successfully ‘is far stronger than that arising from a refusal to take the test.’” People v. Berg, 92 NY2d 701, 706, 685 NYS2d 906 (1999) (quotation omitted) (emphasis added).

Officers are not required to advise you of your right to refuse the FSTs.  So it’s incumbent on all of us to remember on or own that we have that right, and to decide if we are better or worse off if we exercise it.  There are a lot of factors in a DWI case, and any one of them can undermine your quick-thinking FST refusal and perhaps any good that may have come from it.  It's tough to do in the pressure cooker of an imminent DWI arrest, but you must weigh your options carefully before you decide to take or refuse any part of the DWI arrest process.  

A DWI arrest can be a confusing and complicated matter.  If you have been arrested for DWI or any other alcohol-related driving offense, call the experienced DWI defense attorneys at Catalano & Carpenter LLP today to schedule a free consultation at (845) 454-1919, or visit us online at www.CatalanoCarpenter.com.