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How to Defend a DWI Charge

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.

1. 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 dismissed.

2. 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.

3. 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.

4. 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!

5. 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 them carefully.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

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