The holiday season is upon us. This means family dinners, office parties,
social gathering and lots of travel. But at the same time, the holiday
season here in New York means something else for the NYPD: a time of increased
number of DWI checkpoints, car stops for all types and traffic infractions
and a prioritized focus on making DWI arrests.
Needless to say that being arrested for a DWI crime is a deeply unpleasant
experience – and one that can lead to negative consequences affecting
your day to day life. While no one should drive after they have been drinking,
the fact remains that several DWI arrests occur in New York every day.
The following is an overview of what to expect if you find yourself in
this unfortunate position.
The scenario will go like this: you find yourself stopped by a police officer
– either at a DWI checkpoint or as the result of being pulled over
while you are driving. The police officer that comes to your driver’s
side window is trained to make observations that could support a DWI arrest,
such as the way in which you produce your license and registration (which
you are obligated to produce). Perhaps most importantly, however, the
police officer will attempt to
get you talking. The more questions you are asked, the more talking you will do to give
the answers; and the more talking you do, the greater opportunity the
police officer has of listening to your speech, observing your demeanor
and smelling your breath for an odor of alcohol. This is moment where
the police officer can make his ultimate determination of an indicia of
intoxication such as: odor of alcoholic beverage, glassy/bloodshot eyes,
flushed face, impaired speech, and impaired motor coordination. Should
the police officer determine the existence of this criteria, you will
invariably be ordered to exit your vehicle for you to perform various
Once you are out of your car, you can expect to be asked to perform various
sobriety tests – out in the
field, such as the: walk and turn test, one leg stand test, “alphabet”
test, “countdown” test (counting backwards), and the “finger
count” test (touching the tip of your thumb to the tip of each finger
while simultaneously counting up and back). In addition, the police officer
will request that the driver take a breath screening test – which
is typically known as the Alco Sensor test. One way to look at this test
is as a precursor to the Breathalyzer test that is administered back at
the police precinct. The Alco Sensor test is used to lend support to the
police officer’s initial observations of intoxication.
Once an arrest is made, you will be transported to the police precinct
where a video recorder will be turned on and you will be asked to perform
more sobriety tests – similar to the ones requested in the “field.”
It is at this point that you will be officially asked to submit to a Breathalyzer
test – also known as a chemical test. This test determines the level
of alcohol in a driver’s blood. Unlike the alco-sensor test, the
results of this test is admissible in court and will determine the way
in which the DWI case is charged (as well as the way in which a potential
plea bargain is negotiated).
Needless to say, the results of the Breathalyzer is a significant one and
will the affect the direction of the DWI case. Given this, many people ask our
DWI lawyers: “Should I refuse to take a Breathalyzer Test?” Although the
answer ultimately depends on the facts of any given case, a general rule
of thumb is that a driver should agree to submit to the test and
not refuse. The reason is that New York Department of Motor Vehicles or DMV,
will initiate a separate proceeding against you that will deal specifically
with the Refusal. In other words, if you refuse you will also face a
refusal hearing at DMV and be subject to severe license sanctions separate and apart of
those sanctions you may face during the DWI case in criminal court.
Like anything, however, there are exceptions – such as a situation
where a serious accident with serious physical injuries or death has occurred
or in a situation where a driver has additional DWI convictions in the
past. If these facts exist, the option of refusing to take the Breathalyzer
should be more strongly considered.
Another common question clients ask our
DWI lawyers is: “whether one has a 5thAmendment right to refuse any breath or
chemical tests?” The simple answer is no. The 5th Amendment of the
US Constitution protects a defendant from “being compelled to testify
against himself.” A person’s breath sample (or DNA sample
for that matter) is not evidence of a testimonial nature, and therefore
is not protected by the 5th Amendment.
Once the Breathalyzer and sobriety tests are concluded at the precinct,
the police officer will escort you to the arraignment court in any one
of the 5 Boroughs in New York City where the driver awaits the arraignment.
This wait can seem eternal. However, this time is a good opportunity to
have your attorney called so that you can be represented at the time the
driver appears before the arraignment Judge. The arraignment is an extremely
significant time in the course of a DWI case – during which time
issues like bail and license suspensions are discussed so an attorney
should be called as soon as practically possible.