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I Have Been Arrested for DWI – What Happens Next?

In New York State, if a police officer has probable cause to believe that an operator of a motor vehicle is intoxicated or under the influence of drugs and/or alcohol, he or she can stop the vehicle to determine if that is the case. Examples of what constitutes probable cause to stop the vehicle include traffic infractions such as: crossing pavement markings; erratic driving; passing through a traffic control device; speeding; or driving too slowly.

When the officer stops your car and asks you step to step outside of the vehicle, he will request that you perform standardized “Field Sobriety Tests”, which are used to determine your motor coordination and ability to follow instructions. The most common of these SFST’s are the horizontal gaze nystagmus; (during which you are asked to follow the movement of a pen or other object with your eyes), “one leg stand”; and “Walk and Turn”, during which you must walk heel to toe for nine paces on a line, turn using small steps while on the line, and then walk in the other direction for nine steps, all while maintaining your balance and following instructions. In almost every case, the officer will determine that you have failed all three or at two of three of these tests, which purportedly are approximately 65% to 80% accurate in determining intoxication.

The police officer may also request that you blow into a device called an “Alco-Sensor”, or breath screening test, to determine your blood alcohol concentration (BAC). However, it is vital to note that the Alco-Sensor results are not admissible in Court, and if you are arrested, the police will request that you undergo a chemical screening test such as a breathalyzer, blood test or urine test when you are taken to the precinct. Under New York State law, you voluntarily consent to take such chemical tests by virtue of the issuance of your operator’s license; thus, a failure to take the chemical test (regardless of the previous breath screening test) can be found to be a “refusal” at a separate proceeding at the Department of Motor Vehicles. If you refuse the chemical test, you will then have two legal proceedings to contest: First, the DWI case in local criminal Court, and second, the administrative refusal hearing in the local Department of Motor Vehicles office. If you are found to have refused a chemical test by the Department of Motor Vehicles administrative judge at the hearing, your operator’s license or privilege (for out of state drivers) will be revoked for one year, regardless of the outcome of the criminal case, and fines will be assessed.

If you have been charged with a chemical test refusal, the administrative hearing will be scheduled in the DMV approximately 15 days after the first criminal Court appearance.

At the first criminal court appearance, there will be an arraignment during which your attorney will plead you not guilty and obtain the formal documents charging you with at least one, and possibly two, violations of the Vehicle & Traffic Law with regard to driving while intoxicated. Additionally, you will be required to submit to alcohol/substance abuse evaluation to determine if treatment is required as part of your sentence. In Westchester County, the program is known as “TASC”, which stands for “Treatment Alternatives for Safer Communities.” Another treatment option is to obtain treatment from an “OASAS” counselor (certified by the NYS Department of Motor Vehicles), which is an abbreviation for “Office of Substance Abuse Services.”

In addition to an evaluation for alcohol/substance abuse, you will also be required to attend one session of the MADD Victim’s Impact Panel, and the Drinking Driver Program (DDP), the latter of which is a seven week class sponsored by the DMV and commencing after the conclusion of the case. If the plea will be to a DWI charge or a more serious charge such as “Aggravated DWI” (which involves a blood alcohol concentration of 0.18% and above), you will be required to install, at your own cost and expense, an ignition interlock device (IID) in any vehicles you own or have access to, for at least one year from the sentence date. The IID prevents the vehicle from being operated unless you have alcohol free breath and also requires “rolling re-tests” while you are driving. If you are not able to start the car, or continue to drive, due to the presence of alcohol on your breath, the car will not start and the Court, the ADA, and the local probation department (who runs the program) will be notified, leading to additional Court appearances.

Factors that influence pleas and sentencing include prior DWI or other criminal charges, whether there was an accident (with personal injuries, property damage, or both) and your specific BAC. If there is a prior DWI plea or conviction in the last ten years, or you are operating the vehicle with a child under the age of sixteen in the vehicle, pursuant to Leandra’s Law, the new charge will be a felony, which will not be negotiable. If the BAC is above a certain level, the ADA will not offer a reduction to a DWAI (Driving While Ability Impaired), which is a traffic infraction, not a crime.

This generally describes the process for DWI cases and refusals in Westchester County, although there are additional factors and details which are unique to your case. Contact our office online or at (914) 428-7386 to discuss your case in specific detain with an experienced DWI attorney.

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