In the defense of a
DWI charge in New York State the
DWI criminal defense lawyer needs to first properly evaluate the case by obtaining information from
the client and information from the prosecutor. Knowledge of the Facts
is important to the DWI Lawyer and the DWI defense. In Westchester and
Rockland Counties most of the paperwork needed is provided at arraignment.
In Orange and Putnam Counties the District Attorney will mail the required
paperwork. In the Bronx and NYC the paperwork exchange can be a combination
of in court exchange and mail.
It is important to remember that the prosecution has the burden of proving
every element of the crime beyond a reasonable doubt. The best DWI attorneys
know that the DWI defense does not have to eliminate every aspect of the
prosecution's case but only weaken the DWI charge enough to force
a favorable plea bargain or make it difficult/impossible for the prosecution
to prove their case at trial.
The legal strategy behind any DWI defense is complex but there are
major legal areas and arguments that the DWI attorney will need to know and investigate.
The following is a list of the major DWI
criminal defense issues.
The stop of the client's vehicle was improper: The police need a reason to stop any motorist's vehicle. Usually
this comes in the form of a traffic violation, accident or checkpoint
stop. Stopping a vehicle without reason or because the police saw the
driver exit a bar is improper. If the stop of found to be improper the
entire case will be
Miranda Rights: Anytime the prosecution wants to use the motorist's statements against
them at trial the prosecution has to show the statements were made voluntary
and not subject to a custodial interrogation. Failure to properly advise
the motorist of their Miranda rights could result in suppression of the
statements at trial. A typical statement the prosecution would want to
use is any admission of drinking.
Motorists Medical Problems: The top DWI lawyers will want to know if the client has any medical problems
that can affect any of the field sobriety tests such as back, leg, arm
or knee problems. Age is a factor as well. Even if a person is overweight
they may have difficulty performing the field sobriety tests (walk and
turn, one leg stand, etc.). Medical issues are commonly overlooked but
are very important to the DWI defense.
Field Sobriety Tests: The police use these "tests" to determine levels of intoxication
but these tests are never done in ideal conditions and are not 100% accurate.
Usually the tests are conducted at night, on the side of the road, on
uneven pavement, with lights flashing, in bad weather, while the motorist
is tired and scared, without proper instruction. DWI criminal defense
lawyers know that these tests are only approximately 65% accurate!
Videos: In Westchester County and most other counties almost all police cars
are equipped with video cameras most with sound. It is very important
for the DWI criminal defense attorney to obtain those tapes and review
Defense Witnesses: The DWI attorney needs to interview any witnesses that can testify in
the client's defense. Unusually these are friends or family members
who were last with the client and can testify to the condition of the
client just prior to the arrest.
The Breath Test, Chemical Test, Urine Test and Blood Test: Usually the evidence the prosecution relies heavily on is the Blood Alcohol
Content (BAC) reading. The DWI lawyer does have ample opportunity to attack
the results of these tests. The BAC level is attacked by investigating
that the machine was properly calibrated, the operator is properly licensed,
the solution is up to date, there was a two hour waiting period before
the test, all procedures were followed, and Radio Frequency upon the machine.
If blood or urine was properly preserved before the test is important
to investigate as well. The BAC reading usually has an error rating of
.01%, therefore a .08& BAC could be a .07% reading.
Mouth Alcohol: There are many other factors that can affect the BAC levels, including
mouth alcohol, food in the mouth, dental work, burping, cold medicine
and even heartburn or indigestion.
DWI Drugs: Under VTL 1192.4 once can be arrested for DWI Drugs. In order words drugs
not alcohol is alleged to be the reason for impairment. One commonly overlooked
aspect of these types of cases is the failure of the police to use a Drug
Recognition Expert (DRE) to determine the level of impairment. If a DRE
officer is available most of the findings of the DRE can be shown to be
subjective at trial.
Rising BAC Levels: At the time of the arrest a client may have a BAC level of .07% but by
the time the BAC test is preformed the BAC level can rise to any amount.
The important part of the DWI defense is to determine if the BAC level
was on the rise from the time of the arrest to the time the test was preformed.
These are only some examples of how to defend a DWI arrest. Every defense
needs to be explored by the DWI criminal Defense lawyer so the client
can make an informed decision regarding how the case should proceed.
Never be afraid or embarrassed to ask your attorney questions it will help
in the DWI defense and all conversations with an attorney are confidential.