Most of us are aware that driving while intoxicated (DWI) is a serious offense that can, result in harsh penalties. If you are arrested for DWI, you may suffer heavy fines, imprisonment, and suspension or revocation of your driver’s license. Even if (or when) you are permitted to drive after being convicted of a DWI offense, you may be required to have an ignition interlock device installed in any vehicle that you own or operate. If you find yourself accused of drunk driving, there are several effective defenses that may be available to you and can be used by a skilled DWI defense attorney to protect your interests.
How is DWI defined?
The term DWI is used to designate a driver whose blood alcohol content (BAC) is 0.08 percent or higher. You can also be charged with DWI by refusing to submit to a chemical test of your breath or blood and without any scientific reading being obtained by law enforcement.
While a first offense on a DWI charge in New York is usually counted as a misdemeanor, if you have a child aged 15 years old or younger in the car, your first offense will be labelled a felony under Leandra’s Law, formally known as the Child Passenger Protection Act. Subsequent arrests for DWI will be considered felonies.
Penalties for DWI Offenses in New York State
Fines for DWI range, for a first offense, from between $500 and $1,000 when you have a BAC of 0.08 to between $1,000 and $2,500 if your BAC is .18 percent or higher. DWI offenses stay on your record and penalties get stiffer the more convictions you have. If your DWI is found to be the cause of another individual’s injuries or death, you may be charged with vehicular assault, aggravated vehicular assault, vehicular manslaughter or vehicular homicide.
How is DWI proven?
There are a number of ways that law enforcement uses to try to verify that you are intoxicated, including field sobriety tests and breathalyzer, blood, or urine tests that measure the amount of alcohol in your body. While you can refuse to take a sobriety test to determine your blood alcohol level, you should be aware that, in New York State, the punishment for the first refusal to comply is a $500 civil penalty and a one-year revocation of your license.
There is also something known as “common law” section of New York Vehicle and Traffic Law that considers intoxication a condition in which “the motorist lacks the necessary physical and mental skills to operate a motor vehicle as a reasonable and prudent driver.” According to New York law, a police officer, as someone who is quite familiar with the physical and mental signs of intoxication, can give his or her opinion as to whether you appear to be intoxicated. Signs such as a strong smell of alcohol on the breath, flushed skin, bloodshot, watery eyes, poor coordination, poor balance, and slurred speech may be used as evidence of presumptive drunkenness.
Criminal Defenses Against DWI Charges
Having a knowledgeable, talented attorney is essential when you are trying to protect yourself from DWI charges. The attorneys at Barket Epstein are well-prepared with a number of possible defenses to assist you at trial or in arranging a plea bargain. Possible defenses against DWI charges include:
Lack of Probable Cause
This defense questions the police officer’s reason for pulling your car over in the first place. The probable cause standard requires that the officer have a legitimate, non-pretextual reason for stopping you.
Flawed Lab Results or Defective Equipment
Attorneys can often raise doubts about the charges brought against you by challenging and finding fault with the calibration of the breathalyzer device used or questioning the results of blood or urine tests or how the samples were handled, and the rate of errors at the laboratory that did the analysis. Also, breath tests have a .01 percent possible deviation which can sometimes mean the difference between innocence and guilt.
In addition, the breathalyzer, although it is supposed to measure alcohol from deep in the lungs, has been found on occasion to register high amounts of mouth alcohol, leading to a false result. Timing for such tests is crucial and the police do not always follow protocol which states that  they should wait 20 minutes before administering a breath test and  they should wait 20 minutes more if the defendant eats, drinks, burps or vomits. If the arresting officer does not follow this protocol, your attorney can question the validity of the test results.
Alternative Reasons for Appearing to be Under the Influence
If you have refused to submit to a test to ascertain your blood alcohol level, your attorney can argue that having alcohol on your breath does not prove intoxication, that slurred speech and poor balance can result from a number of neurological conditions, and that bloodshot eyes can occur because of allergies or irritation.
You Can Be a Bad Driver or Make a Mistake Without Being Drunk
The argument may be made that just because you committed a traffic violation, such as speeding or running a red light, at a time when local police or state troopers were on the alert for DWI offenders (on a holiday weekend for example), does not mean that you were intoxicated at the time you were stopped.
Field Sobriety Tests Are Known to Be Highly Inaccurate
Noninvasive field tests are frequently used by the police to determine whether there is probable cause to arrest you. Having you stand on one leg, walk a straight line and turn, or follow a pen with your eyes are not precise means of evaluating your sobriety. It has been shown that these tests are inaccurate as much as 50 percent of the time. You may fail such a test because you are nervous, have poor balance, or for any number of other reasons. At Barket Epstein, we utilize a wide array of experts in this field to successfully challenge the conclusions offered by the arresting officers in DWI cases.
Your Miranda Rights Have Been Violated
It is almost always in your best interest to take advantage of your right to remain silent and avoid speaking to arresting officers until your attorney arrives in order to avoid making self-incriminating statements. If the police fail to read you your Miranda rights, this mistake may give your attorney a way to have any self-incriminating statements you’ve made ruled inadmissible.
Witnesses May Provide a Strong Defense
A witness who is a stranger, friend, neighbor, or co-worker, may help to plead your case by convincing the police at the time you’re pulled over, or the judge at trial, of your good character and usual behavior. Such a witness may also be able to testify as to what you did (or drank) previous to the time of arrest.
Mental Alertness Can Contradict an Assessment of DWI
If it can be shown that you followed all of the directions the police officer gave — like pulling over onto the shoulder, opening your window, promptly providing your license and registration, and exiting the vehicle without trouble — these actions may be used by your attorney as convincing evidence that you were mentally alert, and not intoxicated, at the time of the arrest. If you have a witness, he or she may attest to this as well.
If you are arrested on DWI charges in New York City or on Long Island, do yourself a favor and contact the capable attorneys of Barket Epstein. We are ready to defend your rights and protect your freedom.