BAC READING OF .08%

At an arraignment on a Driving While Intoxicated (DWI) charge the Court is required to suspend your New York State driver’s license or privilege to drive in New York State if a Blood Alcohol Contant (BAC) reading is at or above the legal limit of .08%.

There are certain findings a Court must make before they suspend you license pending prosecution but that will be addressed in another blog post.   However in sum, if the Court finds the paperwork sufficient that your BAC was .08% or greater they will suspend.

NEW YORK PROMPT SUSPENSION LAW

The New York Prompt Suspension law is the law which suspends your license at arraignment.  Many times an accused will appear at arraignment without an attorney and be told to surrender their license due to this law.  Almost everyone hands over their license without a full understanding of what just happened and at that moment realize they need an attorney.

Under the Prompt Suspension Law you will not be able to drive for at least 30 days.  In most cases the accused relys on their driver’s license and the consequences of not having a license to drive are devastating.  The Court has recognized the impact of not having a driver’s license for at least 30 days and has allowed the Courts to grant a “Hardship Privilege” to allow the accused to drive under certain curcimstances until the DWI paperwork is processed by DMV and the accused can apply for a Conditional License. Usually this takes 30 days.

THE HARDSHIP PRIVILEGE

VTL 1193(2)(e)(7) governs the Hardship Privilege.  If the Court finds that the prompt suspension of the accused driver’s license will result in a “extreme hardship” the court must issue such suspension but may grant a Hardship Privilege to allow the accused to drive under certain circumstances.  The accused driver’s license is still suspended but a document is issued to the accused from the Court at arraignment allowing the accused to drive for a limited purpose.

What is an Extreme Hardship?

An Extreme Hardship is an inability to find alternative means of travel to or from the licensee’s employment, school or medical treatment.

In order for the accused to prove this Extreme Hardship they are entitled to a hearing within 3 days of the arraignment.  This fact is rarely told to an accused without an attorney and is a vital right to protect ones driver’s license.

The accused must present proof at the Hardship Hearing that there is no alternative means of travel such as family, friends, co-workers, taxis, buses or trains.  The accused must also have some evidence to corroborate that without a license it will be an Extreme Hardship in that they may lose their job, fail school or miss medical appointments.  A witness to corroborate these facts is usually necessaryat the hearing.  The District Attorney will have an opportunity to be heard on this issue and cross examine any witnesses including the accused.

THE PURPOSE OF A HARDSHIP LICENSE

The Hardship License is for a limited purpose.  The license will not allow an accused to drive as part of their employment (taxi driver, traveling salesman) or travel at inconsistent hours.  Also, a Hardship License can not be used to operate a commercial vehicle.

It is always a good idea to contact a DWI lawyer immediately after the arrest.  In some cases I have had my clients call me at the police station.  At Riebling, Proto & Sachs, LLP our DWI lawyers are always available to answer your questions and prepare you for every court appearance.  We offer a Free Consultation and can appear in Court on a moments notice.

The best DWI defense is to be prepared at every stage of the process.  Our attorneys protect your rights in every type of DWI case and will be happy to meet with you.  If you have any questions or concerns please feel free to contact us.

The DWI/DWAI Zero Tolerance Law – Underage Drinking and Driving

In New York State underage drinking and driving is a serious offense. It is important to contact a skilled DWI defense attorney to protect your or your child’s rights in cases of underaged drinking and driving.

At Riebling, Proto & Sachs, LLP, our criminal DWI defense lawyers are prepared to appear in Court or at a DMV administrative hearing and fight for you. Our main goal is to protect you, your license and insurance rates. We are experienced Westchester Trial Attorneys.

The DWI Laws in New York State are as follows:

The DWI / DWAI Arrest

If you are under 21 years of age, driving and pulled over resulting in a DWI investigation, you will be taken to the local police department or State police barracks for the purpose of taking a chemical test to determine your BAC level.The chemical test is usually a breath test, blood test or urine test.

Once you BAC level has been determined you will be charged accordingly.

Administrative Hearing vs. Criminal Court for a DWI

The following is a breakdown of the Zero Tolerance Law in New York State:

• If your BAC is .02% or more, but not more than .05%, you will be charged with the traffic offense of “driving after having consumed alcohol.” You will then be provided with a notice to appear for a hearing before an administrative law judge of the Department of Motor Vehicles.
• If your BAC is more than .05% but not more than .07%, the police will have the option of charging you with “driving while ability is impaired by alcohol” (DWAI).
• If your BAC is more than .07% but less than .08% you will be charged with the offense of “driving while ability is impaired by alcohol” (DWAI), and for those with a BAC of .08% or more, the charge will be “driving while intoxicated” (DWI).

If you are charged with either DWI or DWAI, you will be arrested and dealt with in criminal court.

We provide a more detailed explanation of the Criminal Court Process here.

The DMV Administrative Hearing

The Hearing will be held at a local DMV office. You have the right to be represented by an attorney, the police officer will testify and you will have the opportunity to present witnesses and evidence on your own behalf.

During the DMV Administrative Hearing, the police officer must prove the following:

• You were the person who operated the motor vehicle;
• A valid request was made to submit to a chemical test (Breathalyzer);
• You were younger than 21 at the time;
• The chemical test was properly administered;
• The test showed you had consumed alcohol (.02% or more); and
• The police officer made a lawful stop of the vehicle.

If, after both sides have been heard, the police officer has carried his burden of proving the case, the administrative law judge will make a finding that you drove after having consumed alcohol.

The penalties include a 6-month license suspension, a $125 civil penalty, and a $100 suspension termination fee. Each additional offense will result in your license being revoked for at least one year or until age 21, whichever is longer, plus a $125 civil penalty, and a $100 license re-application fee.

License Revocation as a result of driving after having consumed alcohol

You will need to turn in your license to DMV, and it will be illegal for you to drive. At the end of the revocation period, you may apply for a permit and start the licensing procedure. This does not mean that you will have a new driving record. Any convictions you had with the license which was revoked will still be part of your driving record.

Alcohol and Driving equals: License Suspension

You will need to turn in your license to DMV, and it will be illegal for you to drive. Your license will be returned to you at the end of the suspension period.

If your license is suspended under the zero tolerance law, and you do not have any prior alcohol-related convictions on your license, you may be eligible for a conditional license. However, in order to receive one, you must enroll in and complete the Drinking Driver Program. A conditional license will allow you to drive back and forth to work and school, but it is not the same as a full license.

DWI and DWAI Legal Help

Driving While Ability Impaired or Driving While Intoxicated can have serious implications on your ability to drive in New York State or elsewhere.

It is important to contact a skilled DWI lawyer in New York State as soon as possible to protect your rights. Our attorneys at Riebling, Proto & Sachs, LLP are former Assistant District Attorneys and use that experience to aggressively defend your case. We are Westchester County DWI lawyers also working in all Counties in lower New York.

Contact our Lawyers for a Free Consultation. Our office is always available regarding your DWAI/DWI case and can not only put your mind at ease but provide you with valuable information regarding your drinking and driving defense and your best options to proceed.

The DWI Administrative Refusal Hearing

In New York State, you are deemed to have given your consent to a breath, blood, or urine sample to determine your Blood Alcohol Content (BAC) at the time of a DWI arrest. You may however, refuse to consent to a BAC test. In fact, the police department and State Police are required to read you standard “Refusal Warnings” outlining the consequences of a refusal to submit to a chemical test.

Those warnings are:

1. You are under arrest for driving while intoxicated
2. A refusal to submit to a chemical test, or any portion thereof, will result in the immediate suspension and subsequent revocation of you license or operating privilege, whether or not you are convicted of the charge for which you are arrested.
3. If you refuse to submit to a chemical test, or any portion thereof, your refusal can be introduced into evidence against you at any trial, proceeding, or hearing resulting from this arrest.
4. Will you submit to a chemical test of your (breath/blood/urine) for alcohol? or (will you submit to a chemical analysis of your blood/urine for drugs?)

These warnings will be read to you and the Officer will usually ask you to initial a form with the warnings. One does not get to pick what type of test they would like to take for a BAC reading, but the warnings must be conveyed in clear and unequivocal language.

A DWI Refusal Hearing will be held at the Department of Motor Vehicles within 15 days of the arraignment on the DWI charge.

The license will be surrendered to the Court at arraignment and there is no eligibility for either a Hardship or Conditional license during this 15 day period from the Court or DMV. The Officer and the driver must appear at the scheduled Refusal Hearing at the Department of Motor Vehicles.

• If the driver fails to appear, the Refusal Hearing is deemed to be waived and the mandatory civil suspension takes effect.
• If the Officer fails to appear the driver’s license is restored until the rescheduled date.

At the hearing if the driver is found to have refused to submit to a breath, blood, or urine test for the DWI, the license is revoked for one year.

The only way to get your driver’s license back with conditional privileges is to plead guilty or be found guilty of an alcohol related violation (DWAI or DWI) assuming no prior alcohol charges within the last five years. After a guilty finding the driver can enter the Drinking Driver Program and obtain a Conditional license (12 months) for use to, from and during work, child care, medical and dental for the motorist and members of the household. Additionally, DMV offers a three hour weekly block of time of your choosing for personal matters.

A DMV Administrative Refusal Hearing, not a criminal court, The Judge can convict you on the Officer’s DWI paperwork even if the Officer does not appear.

The standard of proof is “Clear and Convincing” not “Beyond a Reasonable Doubt”.

If the Judge finds that you refused to submit to a test, your license will be revoked for one year. If, on the other hand, the Judge decides the paperwork, procedure, or testimony was not proper, then the ALJ could dismiss the case. The license would be restored.

The Refusal Hearing is important to our Criminal Defense DWI lawyers since it is an opportunity to cross examine the police officer before trial.

Many times our clients request a transcript of the hearing testimony to use at trial. Unlike a civil case depositions are not taken in a criminal case this however is an opportunity to get as much information out of the Officer about the arrest. In most cases this is an advantage for the New York State DWI Lawyer. Our DWI lawyers are always focused on providing the best possible defense and aggressively protecting your rights.

At Riebling, Proto & Sachs, LLP we have worked with clients in DWI refusal cases. The hearings are an important part of and DWI criminal defense and should be attended. In most cases the client has nothing to lose and everything to gain from fighting at a refusal hearing. Refusal hearings are generally conducted in the County of the arrest. Out DWI defense attorneys will defend these matters in any County in New York State including Westchester, Orange, Putnam, Dutchess, Rockland and the Bronx. It is important to act quickly to prepare the defense and be ready for the hearing as the hearing will be held within 15 days of arraignment.

Recently our attorneys represented a client at a DMV Refusal Hearing in the City of Yonkers, Westchester County. The State Trooper testified but did not demonstrate that the driver was adequately notified of the consequences of a refusal. Our DWI defense attorney immediately made an application to the ALJ to dismiss the case and that application was granted. The client walked away with his license and none of the consequences of a DMV Refusal including financial penalties.

If you have been arrested for DWI in New York State , you need an skilled NY attorney. Contact our office to discuss the defense of the case and your options to proceed. We are available for a free consultation for all cases and can explain the DWI Refusal Defense in New York State and how it relates to your case.

When clients come to our office and speak with our New York DWI lawyers, they tell us stories about the police and how they were treated during a DWI arrest.  Most of the information from those charged with DWI is very similar and the police always have the advantage not because they are “all powerful” but because they have a better understanding of the New York State DWI laws than the average person. 

In Westchester County and other Counties in New York State, the local police and State police have a set of procedures they follow in order to build a DWI case against you. 

Since most people don’t know the DWI laws….

………the police can appear friendly, but are taking advantage of the fact you don’t know the DWI laws.

Our New York DWI attorneys are always willing to educate our clients about the DWI laws and how to protect your rights. 

With just a basic understanding of the New York DWI laws this can take the advantage from the police and explain the DWI process.  The DWI laws in New York are complex and how the police enforce them can be inconsistent, but the following can be used to help you get a better understanding of the DWI laws in New York State and how our DWI attorneys in Westchester County or any County in New York protect your rights.

1. When pulled over for suspicion of DWI, the police are immediately building a case against you.
2. The Police can decieve you and most of the time will.
3. You can and should ask for your DWI lawyer immediately.  Be persistent such as “I want to talk to a lawyer now!!” Don’t say something such as “maybe I should get a lawyer?”
4. Never make any statements to the police despite any promises they police may make to you.  Never admit to drinking.
5. All the field sobriety tests (FST) will be used against you at trial.  You have the right to refuse those tests.
6. The handheld breath test used on the side of the road is usually not admissible in court and they tend to register a high reading.
7. .08% is the legal limit in New York State  but you can be arrested for a BAC as low as .06%.  Between .06% and .07% the DWI charge is called Driving While Ability Impaired (DWAI) a lesser included offense of DWI (.08% and above).
8. The police can arrest you if they feel your ability to drive is impaired by drugs.  The offense Driving While Ability Impaired by Drugs is just as serious as regular DWI.
9. Other methods of testing your Blood Alcohol Content (BAC) include blood and urine which in some cases is less reliable than breath tests.
10. The BAC tests are strong evidence of your guilt.  However, if you refuse those tests you face greater consequences with DMV.
11. If you have a high BAC reading the Westchester County, Bronx County Rockland County, Putnam County, Dutchess County, and Orange County District Attorney’s Office will be less likely to enter into a plea bargain if our DWI attorneys can’t get the case dismissed.  This informal rule applies for most of New York State.
12. If you have a CDL driver’s license in New York and arrested for DWI you risk losing your CDL permanently.
13. Most police cars have cameras but few turn them on since that tape will have to be turned over to the our New York DWI lawyers.  Also, any notes the police take must be turned over to your New York DWI attorney.
14. DWI in New York State unlike many other crimes can have a long term impact on your license and insurance.
15. The fees DMV charge if your arrested and/or convicted of DWI can exceed over $1,000.00.
16. A DWI charge is a felony if you have a previous conviction in the past 10 years.

In many DWI, cases these issues appear over and over.  Our DWI lawyers at Riebling, Proto & Sachs, LLP are former prosecutors and know the procedures and polices of various police departments and the State Police.  Our goal is to protect you against any felony charges and/or sentencences for misdemeanor under the DWI laws of New York State.

If you are arrested in New York State for DWI you should speak with a DWI lawyer immediately.  Feel free to call us for a free consultation. 

It is difficult to make snap decisions on the side of the road with the police lights flashing in the background.  The number one rule is to ask for your DWI lawyer as soon as possible.