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BAC & Divided Attention

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

The DWI 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 the button?
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.

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