Defending Multiple DWI Convictions

A second DWI charge within 10 years could be prosecuted as a felony.  This felony prosecution is discretionary unlike a predicate felony — second felony offender, that the prosecution must pursue.

Both predicate felony offender status and felony DWI invlove a conviction within 10 years. 

Predicate Felony

In calculating the time for a predicate felony, the law states that “sentencemust have been imposed more than 10 years before the commission of the felony” PL 70.06(1)(b)(iv). 

Felony DWI Law

The felony DWI statute refers to committing the new offense “after having been convicted of” the predicate crime.  VTL 1193(1)(c)(i).

This is an important distinction.  It is very important in either a DWI felony sitiuation or a Felony under the Penal Law to know this difference.

A “conviction” is defined in the Criminal Procedure Law (CPL) as “the entry of a plea of guilty to, or a verdict of guilty upon an accusatory instrument” CPL 1.20(13).  A judgment is the conviction AND the sentence imposed.  Sometimes in criminal court the conviction will be months before the sentence.  Usually this occurs when the Court orders a pre-sentence report from the Department of Probation.

Felony DWI Example

Where a motorist was sentencedon the prior DWI and occurred within the 10 year limit, but the motorist plead guilty or was convicted at trial more than10 years ago, felony DWI status should not apply.  Therefore, where sentencing is adjourned this time delay should not be used at a later point to increase a seconf felony DWI to a felony.

Misdemeanor DWI

In any DWI offense this rule will apply.  For example, two prior DWAIs within 10 years raises the current DWAI to a Misdemeanor from a violation.

Defense of a Felony DWI

In order to present the best criminal defense a criminal defense attorney in Westchester, Orange, Rockland, Putnam counties or elsewhere need to be aware of the date of arrest, conviction and sentence in order to properly defend a DWI felony charge.

DWI arrest & BAC level

In a DWI arrest the police will need to use a method to test the Blood Alcohol Content (BAC) of a driver’s blood to determine if the driver is intoxicated or impaired after consuming alcohol.  The most common method is to have the motorist blow into a machine to test the alcohol level in the motorist blood.  The machine looks like a large computer and has a keypad in the front.  After blowing into a tube for a few seconds the machine will test the motorist’s breath and submit a result to the police.   The machine’s calibration in any DWI test must be investigated and attacked.

Proof of Breathalyzer Calibration

In New York State the proof necessary by the prosecution in a DWI case is that the Breathalyzer was in proper working order at the time the test was administered to the motorist.  The prosecution has this burden at trial and must prove this element beyond a reasonable doubt.  The prosecution typically introduce into evidence a document entitled “record of calibration/maintenance.”  This is also called the certificate of calibration of the Breathalyzer.

What is a Calibration?

In the field of DWI defense “calibration” refers to the inspection, calibration and repair of the breath test devices by specially trained technicians at facilities such as the New York State Police Crime Laboratory or the New York State Division of Criminal Justice Services Office of Public Safety.  This calibration is NOT the weekly test conducted by the police officers at the police station.  This is a much more complex test for calibration.

Suppression of a Breath Test due to Calibration

In People v Todd, 79 Misc.2d 630, a breathalyzer had not been calibrated for six months and the People failed to establish that the breathalyzer apparatus had been timely calibrated hence the results of the test were inadmissible.  It is incumbent upon the District Attorney to show that the machine was in proper working order.

Todd Six Month Calibration Rule

Although lower courts have expanded the six month rule with respect to the calibration of a Breathalyzer the Court of Appeals has never reversed or altered its six month rule.  This is something that the best criminal defense DWI lawyers must investigate when defending a DWI arrest.

New Breathalyzer Machines

The New York State Police have chosen to calibrate their newest breath test device, the Draeger AlcoTest 7110 MK III (Draeger) only one a year.  Regardless the prosecution must lay a sufficient foundation as to the reliability of the Draeger.  The Todd rule should apply and the government can present expert witnesses to prove calibration.

DWI Defense Lawyers

At Riebling, Proto & Sachs, LLP our DWI defense lawyers investigate every aspect of a DWI arrest.  The best DWI defense will take advantage of every opportunity to limit the government’s case or have the case dismissed outright.  The calibration of the breathalyzer is only one part of the defense to a chemical test of a motorist’s breath test but an important part since the local police have no control over the calibration and usually have no idea how the machine is calibrated.

Free Consultation on all DWI arrests and cases

To have your case reviewed for Free call our office.  We represent clients in Westchester, Orange, Rockland, Putnam, Bronx & Dutchess Counties.  Our attorneys are former prosecutors and dedicated to reviewing your matter and providing you with the best criminal defense.  The Breathlyzer calibration is an important part of a DWI criminal defense and our Westchester County DWI lawyers will review your case, identify the best defense and give you candid straightforward advice.

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.

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.