DWI Defense in New York
In any New York State
DWI defense it is important to know the different BAC levels and how they are applied
under the New York
DWI laws. In Westchester, Orange, Putnam and Rockland Counties, DUI arrests include
those with BAC levels below .08%. An arrest in New York with a BAC level
under .08% will result in the charge of Driving While Ability Impaired
(DWAI). The best
criminal defense will attack the BAC levels.
How are BAC levels below .08% defined?
The DWI laws in New York identify a BAC level of.05% as evidence that the
driver is NOT impaired. A BAC level of .07% is evidence of impairment.
Of course, a .08% results in the charge of Driving While Intoxicated (DWI).
The BAC level is the prosecutor's main tool in determining plea policies
and strategy for trial. Therefore, in the New York DWI defense it is important
to know the BAC amount and any possible margin of error (usually +/- .01%)
to formulate the proper defense.
What is Divided Attention?
Police officers in any DWI or DWAI case are trained to look for certain
cues to determine, without a BAC reading, if the motorist is intoxicated
or impaired. The police are always looking for these cues. Divided Attention
is the basis of these cues.
Divided Attention is the concept that is a motorist is impaired or intoxicated
they can't do two things at the same time and instead will focus on
the more important task while ignoring the least important task. The logic
is that driving a car requires a motorist to do several things at the
same time and alcohol or drugs prevents a motorist for doing those tasks.
The prosecution will focus there case on divided attention therefore it
becomes a DWI defense issue.
The Field Sobriety Tests (FST) (One Leg Stand, Walk & Turn) used by
officers test divided attention. In the DWI defense it is important to
realize that those tests usually can't be preformed even in the best
of conditions. Even the police department's own manuals instruct the
officers that the tests are only about 68% accurate yet they are used
as the primary test for divided attention.
Cross Examination of the Police Officer
criminal defense attorney will attack the police officer by challenging the FST and the
concept of divided attention. An officer will undoubtedly testify about
the test and that the failure of the test was evidence of a loss of motor
skills. To attack this testimony a simple strategy is to focus on what
the motorist was able to do that never made it into a police report or
was testified to at trial. For example, opening the window to speak with
the officer is usually done without error. The cross examination would include:
1. You asked him to lower the window?
2. He responded to your request immediately and moved his hand towards
3. You were watching his hands for officer safety?
4. His movements were normal?
5. His finger went to the button and lowered the window?
6. Without any evidence of loss of motor skills?
This is just one simple example of how to attack divided attention.
In any DWI defense it is important to attack the officer's findings
and establish that the motorist's ability to drive was not impaired.
The BAC level is only part of the evidence against an accused and with
low level BAC readings attacking the concept of divided attention is the
best DWI defense.