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Driving While Intoxicated

New York State takes DWI very seriously. If you or a family member has been charged with an alcohol related offense, your future could be at stake. It is important to contact a skilled DWI attorney like the litigators at Jones & Black, P.C. If you choose to hire our Firm, we will work with you to help keep your arrest record clean, and will make every effort to get your DWI charge reduced or possibly dismissed.

Being charged with DWI or a related offense is scary, unsettling and causes a tremendous amount of anxiety, confusion and frustration. If you are charged with DWI or a related offense, the fear of the unknown can be overwhelming. At Jones & Black, P.C., we take a tremendous amount of pride in discussing every aspect of a DWI case to ensure that, at the very least, you know the process, the law, the application of the facts and the law to the process, the potential outcome, and what to expect while the case is pending (and after its conclusion), all in an effort to alleviate the fear of the unknown, so that you can make an informed decision on how to proceed. We are extremely accessible, and are always eager to make you feel as comfortable as possible, through an inherently uncomfortable situation.


Step 1: Traffic Stop

Police officers need “probable cause” to make a traffic stop. That probable cause could be a traffic violation, an observable defect in the vehicle’s safety equipment, or a driving maneuver that can indicate that the driver may be intoxicated. If given the choice, law enforcement will stop vehicles with the most obvious violations or defects. Speeding, use (or perceived use) of a cell phone, failing to use signals, rolling through a stop sign, or driving without headlights are common justifications for stopping a motorist. If an officer suspects an individual they had probable cause to pull over of being under the influence of drugs or alcohol, they will investigate further by asking the motorist to perform a series of physical tests.

Upon being pulled over on the suspicion of DWI, DUI (driving under the influence), DWAI (driving while ability impaired), DWAI Drugs (driving while ability impaired by the use of a drug/drugs) and/or DWAI Combination (driving while ability impaired by combination of alcohol and drugs), the police will ask you to perform two types of tests: Field Sobriety Tests and Breath/Chemical/Urine tests. You have a choice to either “take” the test, or to “refuse” the test. WHEN SHOULD YOU TAKE THE TEST AND WHEN SHOULD YOU REFUSE??? SEE BELOW for a comprehensive guideline.

Step 2: Field Sobriety Testing
It is permissible and often advisable for a motorist to decline to partake in field sobriety testing. These tests are given to provide police officers with justification to require an individual to take a chemical test (breath, blood or urine). Few ever “pass” one of these roadside sobriety tests; not even the most sober of drivers. It is widely believed by attorneys practicing DWI defense that these test are actually designed to be failed! The three most common field sobriety tests include: The Horizontal Nystagmus Test, The Walk & Turn Test and The One Leg Stand Test. 

The Horizontal/Vertical Gaze Nystagmus Test examines for involuntary “jerking” of the eyeball that occurs naturally as the eyes move from side to side. When an individual is impaired by alcohol, jerking of the eye “nystagmus” is exaggerated. An alcohol-impaired person will also often have difficulty smoothly tracking a moving object. The Nystagmus test consists of the officer moving an object both horizontally and vertically in front of the driver’s face while observing for involuntary eye movement. There are strict guidelines that police officers must follow when conducting this test. At Jones & Black, P.C., we have the training and experience to recognize when the test has not been properly performed, which can be used in negotiations with the Prosecutor to obtain a reduction of the charge, or on cross-examination of the police officer (to discredit him/her) if the case goes to trial.

The Walk And Turn Test is classified as a “divided attention” test. An officer will ask an individual they suspect of driving under the influence of performing a simple physical task while listening to instructions at the same time. More specifically, an individual suspected of DWI will be asked to take nine steps, heel-to-toe, in a straight line, and to return to the original spot, in the same manner. The officer is observing to see if the suspect can follow instructions. An individual that is not impaired or intoxicated can typically complete the Walk and Turn Test without much of a problem. Again, there are strict guidelines that the police must follow when conducting this test, and if such guidelines are not strictly adhered to, it can lead to a plea reduction and/or possible discrediting of the police officer at trial.

In a One Leg Stand Test an officer instructs the motorist to raise one leg, six inches off the ground, while watching the motorist’s foot, keeping the bottom of his or her heel parallel to the ground, and arms at his or her sides. Simultaneously, the officer will instruct the motorist to count out loud until they instruct otherwise. This typically lasts for about thirty seconds. The officer looks for four indicators of impairment, including; swaying while balancing, using arms to balance, hopping to maintain balance and putting the foot down. According to police policies, if an individual exhibits two of these signals, it is likely they are impaired. Again, there are strict guidelines that the police must follow when conducting this test, and if such guidelines are not strictly adhered to, it can lead to a plea reduction and/or possible discrediting of the police officer at trial.

Step 3: Chemical Test
In New York State, the “implied consent” law requires an individual to take a blood, breath, urine, or saliva test if arrested for a DWI, and such test is requested by the arresting officer. In this situation, a motorist has a choice to either “take” the test, or to “refuse” the test.

If you “take” the test, and the result shows a BAC of betw .04 - .07, you will most likely be charged with Driving While Ability Impaired. If the result is between .08 - .17, you will most likely be charged with Driving While Intoxicated. If the results are .18 or higher, you will most likely be charged with Aggravated Driving While Intoxicated.

If you “take” the test, and the test reveals the presence of alcohol and/or drugs, you will be taken back to the police station, and will be asked to take a more “formalized” test. If you take the more “formal” test and it reveals the presence of alcohol and/or drugs, you will then be arrested and charged with the corresponding DWI charge. Usually, despite the actual BAC that is registered, you will still be eligible for a conditional license, which will enable you to drive, with certain conditions, while the case is pending.

If you “refuse” the test, you will be subject to a one (1) year license revocation, no matter how the actual DWI case resolves; the District Attorney can use the “refusal” as evidence of your guilt, and you will not be eligible to obtain a conditional license while the case is pending.
Even if you “refuse” to take the test at the side of the road, you will still be taken back to the police station, where you will still be asked to take the more “formal” breath, chemical or urine test. If you change your mind and take the test, you will follow the process stated above.

CLICK HERE to see factors to help you decide when you should take (or refuse) the test.

Step 4: The Arraignment

The arraignment is your first glimpse at a Judge and the courtroom, which is typically the day after the arrest (ie, you will most likely spend the night in jail). The role of the Judge is to officially state the charges that the government has against you, and to set bail and/or release you on your own recognizance (ROR). The case will then be adjourned to a new date, and usually to a different court room, where the case will thereafter proceed.

If you did submit to a request for a breath, chemical or urine test, and the test revealed the presence of alcohol and/or drugs, the Judge at the arraignment will suspend your driver’s license for a period of 30 days. In most cases, after the 30 days expires, you will be permitted to apply for a conditional license from DMV, which, if granted, will enable you to drive, with conditions, while the case is pending. If not driving during that first 30 days would result in a hardship (ie, not being able to get to work), there is a good chance that we will be able to have the Court issue a “hardship license”, so that you can drive to work during those first 30 days, prior to obtaining your conditional license.

If you decided to “refuse” to take the test, the arraigning Judge will suspend your license, and will schedule a DMV “Refusal” Hearing.

Step 5: DMV “Refusal” Hearing
A DMV “Refusal” Hearing is an administrative hearing (not criminal) to determine whether your decision to “refuse” the test was either proper and legally justified, or if it was improper and therefor legally unjustified.

The hearing is limited to 4 issues: (1) Did the police officer have reasonable grounds to believe that such person had been driving in violation of any subdivision of VTL §1192 (DWI)? (2) Did the police officer make a lawful arrest of such person? (3) Did the police give clear and unequivocal warnings about refusing to take the test? (4) Did the motorist refuse?

Most attorneys will say that it is almost impossible to “win” a refusal hearing. At Jones & Black, P.C., we have a significant track record of success in “winning” refusal cases, and we believe that this hearing is actually an opportunity to prepare the underlying DWI case for the criminal court.
There is an excellent opportunity to cross-examine the arresting officer about everything that happened, and most of the time, the officer has not been prepared by the District Attorney’s Office (often establishing blunders and/or weaknesses in the prosecution’s case). Also, the transcript of the officer’s testimony can be valuable in negotiating a plea reduction in criminal court, or in preparing for the criminal trial, if negotiations do not lead to a plea resolution.
The advantage of winning this hearing is that the license suspension is vacated (ie, license no longer suspended); the disadvantage of losing the hearing is that you are no longer eligible for conditional license while the case is pending, which usually creates a hardship for the motorist, and usually necessitates a change in strategy in proceeding with the underlying DWI.

Step 6: Pre-Trial Motions
Pretrial motions may include motions to suppress evidence, gain supplemental evidence through discovery, split blood or urine samples for independent testing, strike prior drinking and driving convictions, and/or suppress statements made by the defendant. The more evidence and issues that favor you, the more likely the Judge and/or prosecutor are to reduce or dismiss your charges. In most instances, this phase of the process is where a deal is struck, and the legal proceedings conclude. If the prosecutor and your attorney cannot strike a deal during the pre-trial motion stage, a trial will be scheduled.

Step 7: Legal Considerations
In deciding on an attorney, you have three options, which include: representing yourself, hiring a public defender or hiring a private DWI attorney. For the most part, representing yourself is a bad idea. Unless you are an attorney who specializes in criminal defense, you simply will not have the experience and knowledge that are essential to resolving your case favorably. Public defenders know the process. They enjoy established relationships with the prosecutors and Judges and are typically experienced criminal defense attorneys. Having said that, there are several limitations to hiring a public defender, which include not having enough time to devote to any one case, and having much less client contact, other than at the actual court appearances. If you are going to pay an attorney for a top-notch defense, then you should make sure the attorney you hire has both the experience and resources necessary to fight for your rights. Make sure the lawyer you hire focuses on DWI defense, keeps abreast of updates to pertinent laws, and is a highly skilled negotiator. Hiring an attorney who is not experienced in criminal defense law will most likely back-fire, and will be a huge disservice to you.


At Jones & Black, P.C., we have over 33 years of combined experience in defending motorists in all types of alcohol and drug related cases, many of whom either had their DWI and other related charges significantly reduced or outright dismissed. We understand how field sobriety tests and BAC tests should be conducted, and can thoroughly investigate the circumstances of your police stop to determine whether or not the police stop was unlawful, and whether there are triable issues that may impact the District Attorney’s decision on how to proceed, and whether to offer a reduced charge instead of going to trial when an “unreasonable” plea offer has initially been made. We also have the knowledge and experience to know when a case should be contested (due a variety of potential legal reasons), when to accept a plea offer (again, due to a variety of potential legal reasons), and/or when to suggest that a client pleads to the DWI charge that was made against him/her, in an effort to reduce or minimize the possible negative consequences (based upon the totality of the circumstances).

Please call us today for a free consultation.