The Holiday Season is Upon Us and So Too Come DWI Arrests

Posted by Steven G. Brill | Nov 27, 2013 | 0 Comments

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 sobriety tests.

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.

About the Author

Steven G. Brill

Steven Brill is a founding Partner of Sullivan Brill, LLP, which was established in 2001.  Mr. Brill concentrates his practice to Federal and State Criminal Defense, and Post-Conviction Litigation.  Steven earned a BA in history at the George Washington University and graduated with cum laude ho...


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