Please note: Information on this website is intended to inform, not to advise. No one should attempt to interpret or apply any law without the assistance of an attorney that is familiar with that area of law, the rules of the court involved and the specific facts of each individual case.
Copyright 2010: Law Offices of Glenn W. Magnell All Rights Reserved.
Copyright 2010: Law Offices of Glenn W. Magnell All Rights Reserved.
DWI & Vehicle Law Defense Attorney
Goshen Office
162 Main Street, Goshen, NY 10924
Phone: 845-294-0585 Fax: 888-724-5470
162 Main Street, Goshen, NY 10924
Phone: 845-294-0585 Fax: 888-724-5470
Law Offices of Glenn W. Magnell
Cornwall Office
151 Continental Rd., Cornwall, NY 12518
Phone: 845-725-7935 Fax: 888-724-5470
151 Continental Rd., Cornwall, NY 12518
Phone: 845-725-7935 Fax: 888-724-5470
What else can constitute "probable cause" to arrest someone for DWI?
Officers will generally cite things like "glassy eyes", "odor of alcohol", "poor motor coordination", "slurred speech", etc., as probable cause to arrest if a suspect refuses to take SFST's.
Is DWAI a misdemeanor?
No, DWAI is a violation, not a misdemeanor or felony. Nonetheless, a conviction for the offense can have very serious consequences. However, a similar sounding offense, "DWAI-Drugs", is a misdemeanor and can be charged as a felony for second time offenders.
Can I be convicted of DWAI-Drugs for using marijuana and driving?
Yes, in theory you can. However, the standard chemical test used by most police agencies to detect drug use is a urine test. These tests do not show how much (if any) of a controlled substance is in a persons blood at the time they provide a urine sample. Instead, they only show how much by-product of metabolizing the drug is present in the urine. This is an important difference, since the by-products of metabolism can appear for days and sometime even weeks after drug use (especially in the case of marijuana).
What is a "field" or "preliminary" breath test and how does it differ from a "chemical breath test"?
When a police officer is trying to determine if he has probable cause to arrest a driver he will typically use the SFST's (see above) and a hand held "breath test" device. The hand held device can be used to help establish probable cause to arrest. But, the device is not considered reliable enough to be used in evidence at a trial. Instead, it is generally only used to show that there was some alcohol in a driver's system. A chemical breath test device is a larger system that is set up at a police station. It is designed to measure the amount of alcohol vapor in a person's "deep lung breath". Based upon some complex (and not always reliable) scientific assumption the alcohol vapor in a given sample of breath is claimed to be similiar to the amount of alcohol in the blood of the person who gave the breath sample. DWI attorneys frequently challenge the use and reliability of chemical breath tests. The underlying science is questionable at best and for the results to have any evidentiary value the test must be done according to a strict procedure and the operator must have be certified by the NYS Department of Health to give the test.
What happens if a driver refuses to take a "chemical breath test"?
Prior to administering a chemical breath test the officer involved is required to advise the subject that should he refuse to take the test the NYS Department of Motor Vehicles may revoke his license for one year. The officer will typically ask the subject twice if he is refusing to take the test and if he understands the impact of such a refusal. If the driver persists in the refusal the officer will note that in the arrest documents. When the driver first appears in court the judge will suspend his license pending a "refusal hearing" before a judge employed by NYS DMV. The hearing must take place within a relatively short time after the initial court appearance. For more information on refusals see the column on the left of this page.
What happens at a "refusal hearing"?
At the hearing the officer involved will testify and the subject of the hearing has a right to testify, but cannot be forced to do so. The subject has a right to be represented by an attorney, but a court will not appoint an attorney to represent him if he cannot afford one. At the hearing three basic questions are addressed: 1) did the officer have a reasonable cause to stop the subject's car?; 2) did the officer have probable cause to arrest the subject?; 3) did the subject knowingly refuse to take the chemical breath test? Each of these three points must be proved by a majority of the evidence (legally known as the "burden of proof" being a "preponderance of the evidence"). This is a much lower standard of proof than is required at a trial to convict someone of a criminal offense. If the judge finds that the officer met the standard of proof the one year revocation is ordered. If the judge finds the standard of proof was not met the driver's license is returned to him. A subject has a right to appeal the decision of the judge (but, appeals are rarely won).
Officers will generally cite things like "glassy eyes", "odor of alcohol", "poor motor coordination", "slurred speech", etc., as probable cause to arrest if a suspect refuses to take SFST's.
Is DWAI a misdemeanor?
No, DWAI is a violation, not a misdemeanor or felony. Nonetheless, a conviction for the offense can have very serious consequences. However, a similar sounding offense, "DWAI-Drugs", is a misdemeanor and can be charged as a felony for second time offenders.
Can I be convicted of DWAI-Drugs for using marijuana and driving?
Yes, in theory you can. However, the standard chemical test used by most police agencies to detect drug use is a urine test. These tests do not show how much (if any) of a controlled substance is in a persons blood at the time they provide a urine sample. Instead, they only show how much by-product of metabolizing the drug is present in the urine. This is an important difference, since the by-products of metabolism can appear for days and sometime even weeks after drug use (especially in the case of marijuana).
What is a "field" or "preliminary" breath test and how does it differ from a "chemical breath test"?
When a police officer is trying to determine if he has probable cause to arrest a driver he will typically use the SFST's (see above) and a hand held "breath test" device. The hand held device can be used to help establish probable cause to arrest. But, the device is not considered reliable enough to be used in evidence at a trial. Instead, it is generally only used to show that there was some alcohol in a driver's system. A chemical breath test device is a larger system that is set up at a police station. It is designed to measure the amount of alcohol vapor in a person's "deep lung breath". Based upon some complex (and not always reliable) scientific assumption the alcohol vapor in a given sample of breath is claimed to be similiar to the amount of alcohol in the blood of the person who gave the breath sample. DWI attorneys frequently challenge the use and reliability of chemical breath tests. The underlying science is questionable at best and for the results to have any evidentiary value the test must be done according to a strict procedure and the operator must have be certified by the NYS Department of Health to give the test.
What happens if a driver refuses to take a "chemical breath test"?
Prior to administering a chemical breath test the officer involved is required to advise the subject that should he refuse to take the test the NYS Department of Motor Vehicles may revoke his license for one year. The officer will typically ask the subject twice if he is refusing to take the test and if he understands the impact of such a refusal. If the driver persists in the refusal the officer will note that in the arrest documents. When the driver first appears in court the judge will suspend his license pending a "refusal hearing" before a judge employed by NYS DMV. The hearing must take place within a relatively short time after the initial court appearance. For more information on refusals see the column on the left of this page.
What happens at a "refusal hearing"?
At the hearing the officer involved will testify and the subject of the hearing has a right to testify, but cannot be forced to do so. The subject has a right to be represented by an attorney, but a court will not appoint an attorney to represent him if he cannot afford one. At the hearing three basic questions are addressed: 1) did the officer have a reasonable cause to stop the subject's car?; 2) did the officer have probable cause to arrest the subject?; 3) did the subject knowingly refuse to take the chemical breath test? Each of these three points must be proved by a majority of the evidence (legally known as the "burden of proof" being a "preponderance of the evidence"). This is a much lower standard of proof than is required at a trial to convict someone of a criminal offense. If the judge finds that the officer met the standard of proof the one year revocation is ordered. If the judge finds the standard of proof was not met the driver's license is returned to him. A subject has a right to appeal the decision of the judge (but, appeals are rarely won).
DWI & DUI FAQ's
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What are Standardized Field Sobriety Tests (SFST's)?
Law enforcement personnel use a variety of tests that are supposed help them determine if someone is intoxicated or impaired by alcohol or drugs. Most commonly used are three tests that the National Highway Traffic Safety Administration has approved as having a scientific basis. These are the horizontal gaze nystagamus(HGN), heel-to-toe walk and turn and the one leg stand test. The HGN test is designed to test how smoothly a suspect's eyes can track from left to right and back again. The other two tests provide some information as to the ability of a suspect to perform activities which require divided attention and also provide information on the the motor coordination of a defendant. Different police agencies or officers may also use the alphabet test.
Should I take or refuse the SFST's?
Police officers use SFST's to determine whether or not they have "probable cause" to arrest a suspect for DWI. Many attorneys consider these tests to have been designed to generate "failure" grades and do not accurately determine whether someone is or is not intoxicated. Most attorneys recommend that people stopped for DWI should NOT take SFST's. A refusal to take SFST's can result in a traffic ticket being written (in NYS).
Law enforcement personnel use a variety of tests that are supposed help them determine if someone is intoxicated or impaired by alcohol or drugs. Most commonly used are three tests that the National Highway Traffic Safety Administration has approved as having a scientific basis. These are the horizontal gaze nystagamus(HGN), heel-to-toe walk and turn and the one leg stand test. The HGN test is designed to test how smoothly a suspect's eyes can track from left to right and back again. The other two tests provide some information as to the ability of a suspect to perform activities which require divided attention and also provide information on the the motor coordination of a defendant. Different police agencies or officers may also use the alphabet test.
Should I take or refuse the SFST's?
Police officers use SFST's to determine whether or not they have "probable cause" to arrest a suspect for DWI. Many attorneys consider these tests to have been designed to generate "failure" grades and do not accurately determine whether someone is or is not intoxicated. Most attorneys recommend that people stopped for DWI should NOT take SFST's. A refusal to take SFST's can result in a traffic ticket being written (in NYS).
Other Links
Law Offices of Glenn W. Magnell
Hudson Valley DWI Defense Attorney
162 Main Street, Goshen, NY 10924 Phone: 845-294-0585
Continental Rd, Cornwall, NY 12518 Phone: 845-725-7935
NYS DMV Refusal Hearings
Any driver arrested for DWI and accused of "refusing" a chemical test will have their driver's license
suspended at their first court appearance. The court must also refer the matter for a "refusal hearing" that takes place within
15 days. The "refusal" issues runs in parallel to the criminal matter, but the hearing takes place in front of a NYS DMV Hearing
Officer. At the hearing only four issues are addressed:
1) was there a lawful "stop" of the vehicle;
2) did
the officer have "probable cause" to arrest the driver;
3) was the driver read the "refusal warning;" and,
4) did the
driver knowingly and voluntarily "refuse" the chemical test.
Typically, both the officer that made the stop and the arrest, as
well as the officer that read the refusal warning will testify. They can be cross-examined about all the issues. The driver
has a right to testify and to call witnesses on his behalf. The Hearing Officer needs to find that there is "more evidience
than not" supporting all four issues in order to make a finding of a "refusal." This burden of proof is much lower than the
"beyond a reasonable doubt" standard that applies in the criminal case.
If a finding of "refusal" is made the driver's license
is revoked for one year. The driver has a right to appeal to the DMV "appeals unit." Few appeals to DMV are successful.
If the appeal fails the driver can move the matter into the appropriate County Supreme Court.
If a driver's license
has been revoked for a "refusal" the only form of a restricted license that is available to them is a "conditional license" which
can only be granted by signing up for the NYS DMV "Drinking Driver Program." Eligibilty for the DDP is restricted to people
who have been convicted of some form of drinking-driving offense. As a result, most drivers who are revoked for a "refusal"
are forced to take some sort of plea to either DWI or DWAI if they wish to have even restricted driving privileges.
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