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. 

Driving While Ability Impaired by Drugs - NYS Vehicle and Traffic Law Section 1192.4

I posted something on our Facebook page (www.facebook.com/CatalanoCarpenterLLP) commenting on how driving while impaired by drugs (specifically, the sleep-aid Ambien) is a crime in New York State. Afterwards, it occurred to me tho that most people may have no idea what “drugs” can get you into trouble with the law. Obviously, bombing up and down the Taconic State Parkway after a bump of cocaine is a “no-no” no-brainer. But what about prescription meds? Does the law really tell you that you can’t drive yourself to work after taking your required and perhaps even life-saving PRESCRIBED medication?

Yes!  As a matter of fact, it tells you exactly that!

If your medication is included in any one of the five schedules of controlled substances contained in NYS Public Health Law Section 3306, it is illegal to drive while that substance is in your system. You might be thinking that FIVE different schedules of substances sounds like a lot…and you’d be right! It IS a lot! There are a lot of prescribed medications on that list that most people don’t realize can jam them up. And I’ve had plenty of clients come to me after an arrest for NYS VTL 1192.4 (driving while ability impaired by drugs) totally confused as to how they could have been arrested when they had the legal prescription bottle right next to them in the car! Think about it tho: it’s not illegal to drink alcohol either! But if you’re impaired because of the alcohol you drank, it’s a crime to drive.

Ok, so practically speaking, your heart medication probably isn’t going to get you arrested (unless it impairs you somehow AND contains a scheduled narcotic). Generally police officers and other arresting agencies are mostly concerned with (i.e., trained to look for symptoms related to) certain categories of controlled substances.  Those categories are 1) Central nervous system depressants (e.g., alcohol, valium); 2) Central nervous system stimulants (e.g., cocaine, amphetamines); 3) Hallucinogens (LSD); 4) Disassociative anesthetics (e.g., PCP); 5) Narcotic analgesics (e.g., heroin, morphine, codeine); 6) Inhalants (e.g., gasoline, glue, nitrous); and 7) Cannabis. If you’re driving with anything in your system that falls into one of those categories, you’re breaking the law.

Most of the examples I included are pretty apparent. But, as I mentioned at the top of this article, when it comes to the NYS Vehicle and Traffic Law, there’s no real difference between that illegal cocaine and that Ambien pill prescribed by your lifelong licensed family physician. If you’re impaired, you’re probably getting arrested.

Long story short, know your meds, and know which ones are included in ANY of the five schedules of controlled substances. Most of the substances are not identified in the schedules specifically by a pharmaceutical identifier, but rather by the generic name; Ambien, for example is included in Schedule IV as Zolpidem.  So if you don’t know, ask your doctor. Don’t drive drugged.

DWAI-Drugs is a serious offense and can result in penalties different an/or in addition to an alcohol-related DWI.  If you have been charged with DWI, DWAI-Drugs 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.