I Refused The Breathalyzer Test; Therefore, No Evidence Will Exist Against Me.
This concept is both true and not true.
My preference is for the majority of people not to take the breathalyzer or any breath tests, because the police officer’s opinion is the evidence that is ultimately used against the person in the case.
Even if someone does not take the breath test, the police officer will still tell the judge and the court his opinion about the way the car was operated and the way the person appeared. The officer will state if the person had red, glassy eyes, slurred speech, unsteady feet, and an odor of alcohol. This is the evidence based upon the officer’s experience. In his opinion, therefore, the person is intoxicated.
It is always a plus if the officer does not have the breathalyzer machine. Note that I always tell people to take the tests if they have a commercial driver’s license. However, I tell people most often not to take the breath test.
I Performed Rather Well On The Standardized Field Sobriety Tests; It Will Be An Easy Case For Me.
Often, people will admit that they were very drunk and think they performed well of the field tests. However, if there is a video, they can see they did not actually do well. Most people think they performed well on those tests. However, the tests were designed for failure. People cannot perform well.
The police officers ask the person to do maneuvers or performance agility tests. They ask people to do things that are not natural.
Afterwards, they look for certain clues that indicate somebody has impairment or is intoxication. The case is never easy when somebody says he performed well. This is because a police officer on the other side will say that he did not perform well.
The better people perform on these tests makes the case easier; however, it is never an easy case.
I’ve Refused The Breathalyzer, and I’ve Also Refused The Standardized Field Sobriety Tests. I Should Be Home Free. This Is An Easy Case For Me To Win.
This is also a great way to look at the case.
The more tests people refuse to do, the better off they are. As an experienced attorney, I would prefer it if the evidence was simple what the person did, instead of the tests. For instance, these actions could include the way the car was actually being driven, the way the person pulled over when the police put the lights on, and his interactions with the police officer.
Furthermore, this could include the way he refused or declined to take the breath test or declined to take those field tests. Note that as long as he is able to say that he is not taking it because a lawyer told him not to, or that he will not take them because he is not physically capable.
The person would not be home free. However, this would explain why somebody would not take those tests.
In New York, a person’s failure to take the breath test would be the only thing possibly used against him if he exercised the right to remain silent. The person is told that if he does not take a breath test, then he can lose his license for a year. Furthermore, the government is allowed to enter into the trial and tell a jury that the reason the person did not take a breath test was because he knew he was guilty and would fail the test.
The fewer of these tests that people take is better, as long as he has not said the wrong thing when declining to take the tests. This surely makes the defense of the case a lot better.
The Police Officer Did Not Read Me My Miranda Rights. The Case Should Be Dismissed.
This is one of the biggest misconceptions. All too often, we try to explain that the police never really have to read someone the Miranda Rights.
The only time he does is if he is going to interrogate someone and question him after arrest. If the police has someone in custody in the police station after telling him he is under arrest and begin to ask questions, the police do not have to tell the person that he has the right to remain silent.
Most of the damage is done at the scene before the person is placed under arrest. The police officer asks if he had anything to drink that day or how much he had to drink. He will ask where the person was coming from and where he was going.
In New York state, these questions are considered investigatory by the court. Instead of an interrogation, these questions are part of an investigation. Thusly, the police officer does not have to tell the person he has the right to remain silent.
However, if the person has already spoken to cooperate with the police, his words can be used against him. After the police places the person under arrest for driving while intoxicated, the police does not have to read the Miranda Rights.
The Police Officer Was Very Rude, and I Felt Forced To Say Or Do Things Because I Was Very Intimidated. It Was All Caught On Camera, and It Will Be Used Against The Police Officer.
Unfortunately, no cameras exist in the majority of New York State. Only now, they’re beginning to put personal cameras and microphones on some police officers in a couple of jurisdictions, which is better than 95 percent of New York State.
If a camera exists, it is found in the police station, videotaping the client as he is asked to perform field maneuvers or a breath test. If the police were rude, and intimidation was used at the scene, this isn’t caught on camera.
The Police Officer Was Very Nice When He Arrested Me and Assured Me the Arrest Was Just Part Of Common Procedure.
It is more common to have polite police officers than rude ones.
A lot of police officers tell clients not to worry, that they are sure the charges will be reduced to a speeding ticket, driving while impaired, or a lesser case. This is not the case at all.
The police are not involved in the plea bargain process. Therefore, it is up to the district attorneys and the prosecutors to note your ultimate charges. When the police are very nice, our clients are lulled into a sense of trust. They cooperate to give them the tests the policemen want.
Furthermore, the clients assume the cooperation will allow the police to tell the prosecutor that they were very nice, that the prosecutor should go easy on them. This does not happen in New York State or many other states.
Everybody has guidelines. The prosecutors have their own. If the police officer is nice to someone, the person is generally nice back. This does not necessarily help the case, and it is not initiated into the procedure. The decency simply makes the event less of a problem for the police and the motorists.
I’m Not An Alcoholic. The Court Will Understand That and Go Easy on Me.
In New York, the majority of people who are pulled over for driving while intoxicated are not alcoholics.
The problem depends on where the person is at the time of the incident. In Nassau County and Suffolk County, when someone gets pulled over for DWI, he will be sent for an alcohol evaluation to resolve the case.
If he is stopped for a second alcohol-related event, then the courts think the person is an alcoholic. This can be used to enhance any kind of sentencing or any kind of punishment. If the event is the first time, this assists the person by declaring that the person simply made a mistake.
Note that the person is not going to have an easy time, no matter if he’s deemed an alcoholic or not. It is no longer the day and age in which judges or juries are very sympathetic to anybody who is stopped for a drunken driving offense. This is why it is so important to have an experienced attorney to handle the case.
My Tolerance Level For Alcohol Is Really High. Therefore, It Takes A Long Time for Me to Get Intoxicated. I Can Use The Standardized Field Sobriety Tests To Prove That I’m Fine.
The standardized tests are meant for failure. People cannot test well. They were designed so that the results will be inconclusive, even if the person does everything perfectly.
When people just do these tests to show how fine they are, then the police officer has more evidence to show that the person is not so fine. If someone is given the choice, then it is usually our suggestion not to take the government tests.
It should be mentioned that there may be some sort of repercussions as a result of refusing the tests. However, a person is not required, under any law, to take any field sobriety tests.
In New York State, the Department of Motor Vehicle states that if someone wants to have a driver’s license, he must submit to a chemical test of his blood, breath, or urine. If he doesn’t, he could lose his license for a year.
I would still suggest, however, that people do not do the field sobriety test.
I Only Had 3 Drinks. I Told the Officer. I Can Even Show The Receipt From the Bar. Shouldn’t This Be Enough to Prove My Innocence?
This information would be enough to get the person charged and convicted of a driving while intoxicated. This is because three drinks yields many questions: during what period of time were they consumed? How much does the person weigh? What is the person’s tolerance?
Volunteering the three drink information and showing the police the receipt gives credibility to the police officer, allowing him to think he was right. This is opposed to somebody using silence.
A person should not volunteer the number of drinks because the case depends on how the alcohol in affects that person, how it gets digested, and how it gets metabolized.
Three drinks for one person can be devastating whereas three drinks for another person has no effect. It might further have no effect on a breath test. There is no way to say that three drinks is good or bad.
I always suggest that people not volunteer that they had anything to drink at all.
I’m a Professional In The Education Field Or Healthcare Field. Therefore, The Courts Will Go Easy On Me.
This is a misconception. The courts really do not take the person’s professional life, occupation or education level into account. The court only cares that the person was accused of a DWI.
Note that it would not matter if the crime was a robbery, a murder, a DWI, or a shoplifting case; the fact that the person has been accused is what matters.
Sometimes the fact of the occupation can be used against the person from the prosecution side. The court can say that the person should have known better because he is in the health or education field.
Just because someone is in any kind of a professional field, this does not mean it will be better for him when compared to anyone else.
I Am A Single Mother. The Court Should Be Lenient With Me.
We like the court to take this information into account. However, the information is not very successful for winning cases.
If someone catches the right judge and the right prosecutor, then this information might come into play during the punishment phase. It does not necessarily come into play when deciding whether or not the case ultimately gets dismissed or during plea bargaining to create a lesser charge.
The alteration could be like this: because of the person’s obligations as a single parent, he might not be eligible to pay the fine or do community services. Alternately, the court might give the parent more time to do her jail time, due to her obligations.
Being a single mother can also have a judge or a court scorn the person and say, “Shame on you; you should have known better.” Being a single parent or a single mother does not necessarily lead to leniency.
I Got A DUI For Prescription Medicines, As such, I Really Don’t Have To Worry.
When the person gets a DUI for prescription medications, this just means the person doesn’t have to worry about being charged with an illegal substance, on top of his DUI.
The law in New York states that a person cannot operate a motor vehicle if his ability to do so is impaired by a substance. Alcohol is a legal drug, even if it is not necessarily prescribed.
Prescription drugs are legal drugs. However, all drugs have some sort of warning against operating heavy machinery or operating a motor vehicle. This is because the drugs might make the person drowsy. Think about the drowsiness offered by any over-the-counter medication, like cough medicine.
If something makes a person tired, even if it was legal, then this does not mean the person should drive afterwards. A person could be arrested and charged with DWI if the medication makes him less than 100 percent alert while driving the car, even if it’s a legal prescription medication.
Would A DWI From Another State Be A Problem For Someone In New York?
This is an issue these days because all the states have a couple of issues. They have the interstate compact and criminal records now computerized to allow the states to talk to each other via the fingerprints.
In New York, if someone has a prior DWI in another state, then that DWI is a DWI in New York State as well. The circumstances and the underlying elements of the crime still can be used against the person in New York State.
Furthermore, a person cannot go to 50 different states, get 50 different DWIs, and still be a first time offender in each state. The information from the previous state can be used against the person to either elevate the crime to a more serious crime or else elevate the punishment to a more serious punishment.
I Went To Vegas For Vacation And Got A DWI. Now That I’m Back, The DWI Is Not Going To Be A Problem.
This issue depends on the state.
For instance, New York State does not have an expungement statute, or a way to seal the record. Once a person has a record, it remains. In New York, a ten year old record or less is used to elevate the crime to a higher crime. However, the fact that the crime existed more than 10 years ago still can be used to elevate or enhance punishment.
A first time offender might receive a certain punishment. However, if it is a second offense, even though the last time was 30 years ago, the judge might declare that it’s not the person’s first time.
A person can receive a higher fine or find himself with probation, when this is normally not the case. Alternately, he could even go to jail.
If someone has a DWI in another state other than New York, it is a good idea for the motorists to contact an attorney in that previous state to note if the DWI in that state can be expunged. Then, perhaps it can be kept from being used against him in New York.
If I Was Convicted For A DWI, I Can Just Expunge It Right Away Or Take It Off From The Record.
Unfortunately, no expungement statute in New York exists.
Therefore, any alcohol-related offense, DWI driving while intoxicated, (either by common law, police’s opinion or with a breath alcohol content of 0.08 or higher), or even the DWAI, or driving while ability impaired, (even though this is a traffic violation, not a crime) cannot be expunged in New York.
The record will exist for the rest of the person’s life. This can come back to haunt somebody on another arrest, filling out a job application, or applying to anything with the “conviction” question.
Sometimes, this question is asked in the insurance business during which the company asks if the person has ever had any driving issues, speeding or alcohol-related offenses.
Thusly, this issue is a big misconception. A person cannot plead guilty to something and think he will wipe it away while saving money and taking the easy road. In the long term, this is the worst thing he could do.
I Blew Under 0.08. I Should Be Fine In My Case, Right?
In New York, in Nassau County and Suffolk County, even people who blow under 0.08 can be charged with the higher crime of driving while intoxicated with the common law.
This seems a little inconsistent. The breath result shows the person was not intoxicated, that he was only impaired. However, the person can be prosecuted for the higher crime of driving while intoxicated, instead of the violation. This is because a police officer said that even though it was 0.07, a 0.07 for this individual made them operate a car in such a substandard fashion that he was officially driving while intoxicated.
A person does not need to have a breath result for driving while intoxicated because common law aligned with a 0.07 can be used against him to show that he was actually driving while intoxicated on the common law side. This is a little confusing. However, the reading of below .08 does not shield the motorist from being charged with and possibly convicted of the higher driving while intoxicated charge as opposed to the driving while impaired statute.
I Have A Family, And I Don’t Have A Criminal Record. The Courts Will Take This Into Consideration And Go Easy On Me. They Might Let It Slide.
If this was the person’s first offense, then we need to know everything about the particular offense. Was it somebody’s first offense blowing 0.05, or was it somebody’s first offense blowing a 0.25 alongside a car accident?
Many other factors are involved in a DWI case. A person cannot simply say it was his first time to promote leniency. Instead, the lawyers can try to use this first time issue to the best of their ability. They’ll state that it will be the person’s first and last time. However, the circumstances of each case stand on their own. The court may not be lenient on a person just because it was their first offense.
I Admitted I Was Drinking And Intoxicated. I Pulled Over To The Side Of The Road To Wait It Off. However, The Police Insisted On Arresting Me Even Though I Wasn’t Driving. This Should Be An Easy Case, Right?
This brings up another misconception.
We need to figure out why the person was on the side of the road and how long he was there. A great difference exists between somebody who just pulled over sitting in the car and somebody sleeping in the car.
In New York, operation of the motor vehicle is required. As such, if someone were the only person in the car, then the police will assume that the person drove the car.
A car can be to the side of the road for many reasons. For example, the car might have run out of gas. For a typical DWI case in which the motorist is also sitting in the driver’s seat, this must be taken into account. The law does take into account whether the car is being operated or whether the person intends to operate the car at a later time.
Furthermore, if somebody was driving, didn’t feel good, and pulled over to sleep or wait at the side of the road, the alcohol is being absorbed, thus increasing his blood alcohol level. Note that this is a very scientific defense that can make the case more complicated.
Because this is a lingering misconception, and it is very important to have an experienced DWI lawyer handle the defense.
I Can Talk About My Case On Social Media Sites, Like Facebook Or Twitter, Without Doing Harm to My Case.
One of the first things I ask a person during the initial meeting is if he has a Twitter, a Facebook, or any other social media account. I tell him to shut it down. He definitely cannot talk about it, because a good prosecutor will look for this.
I’ve seen cases that were pending in which clients posted pictures of themselves out with friends, holding drinks, or saying silly things. The prosecutor can question how sorry the client possibly feels for his actions if he is out drinking, getting drunk, and having a party.
This becomes more important in the case of a car accident that injured someone. In this case, an injured party is at home or in the hospital while the defendant or the accused is out having a good time.
The more people talk about it on Facebook and Twitter, the worse it can be. We always advise people not to talk about the case, to stay low, to stay calm, and to let the lawyers defend the case.
What If Other People Posted Pictures Of The Person on Social Media?
Many people have a habit of going onto Facebook and checking in bars. While the case is pending, they could be anywhere. Although a person is allowed to travel as long as there are no travel restrictions involved in his bail, he should not post about all the bars he attends throughout his travels.
It is difficult to show that the person is upset about the case, that he is in treatment and doing the right things when the government has the social media information. People put pictures up of themselves and other people all the time. Once it’s on the Internet, it’s there forever. This is never helpful.
I Should Come Clean To The Court, Tell Them About My Habit, And Allow Them to Understand My Honesty.
If someone does not have an attorney and doesn’t want to have an attorney, he can plead guilty and go to jail. However, this is one of the worst ideas a person can have. The reason people have attorneys with experience in the DWI field is to protect them from the government and from themselves.
When an accusation exists that states that somebody is driving while intoxicated or has any alcohol related offense, a negative inference lingers in the fact of the habit. To have a client move forward and confess to doing it, thus throwing himself at the mercy of the court, is not helpful at all.
The court must know the remorse, that this was a one-time thing.
The client cannot be forthcoming until his deal is cemented. At this time, he can say, “Yes, I admit I did this. It was a mistake, and I’ll never do it again.” This cannot happen until the appropriate time, if ever.
I Always Hear That A DWI Is An Impossible Battle. I’m Going To Lose.
A DWI is not impossible. We successfully defend over 90 percent of these cases, which means that 90 percent of people are found with lesser charges rather than guilty charges or have their charges dismissed.
Then, other cases occur in which people actually work out a deal and admit their crimes. A defense exists for every case. The person is never doomed. It is absolutely possible to defend these cases.
I Think I’m Going To Be Facing A Great Deal Of Jail Time For My DWI.
This may be true depending on which county the person lives in, whether the person is in Nassau County or Suffolk County. Like everything else, many issues are involved in the case to determine the jail time.
A first time offender is very rarely looking at jail time. Sometimes, first time offenders kill people. These kinds of people may be facing jail time. Note that the average first time offender who is not involved in any kind of physical injury or property damage would not be looking at jail time at all.
I Smoked Marijuana Several Days Prior To Being Arrested. This Should Not Show Up On The Blood Or Urine Analysis. It Should Not Be Used Against Me.
A marijuana case enters the “driving while impaired by drugs” statute.
Marijuana, unlike alcohol, does not get digested. It gets metabolized. Afterwards, the marijuana or the byproducts of the marijuana will be stored in the body for up to 30 days or longer. When an experienced DWI attorney like myself receives these results, we are able to point out to the prosecution that the marijuana detected in these tests is not really marijuana.
Instead, the tests would only detect THC or other marijuana products. We can show the prosecution and the government these byproducts, that these metabolites are inactive, that they are not hallucinogens, and that they are just old. The elements were residue and therefore not impairing the motorist while they were driving.
This should occur when dealing with an experienced DWI attorney as opposed to an inexperienced one. It takes an experienced defense attorney to know the science, to show the prosecution, and, if necessary, even at a trial that what was discovered was not recently smoked. The residue, therefore, did not impair the person at all.
I Have Researched Enough On The Internet And Through Friends’ Experiences; I Can Probably Win This Case On My Own.
Some people may think this. The same people would think they could do brain surgery if they Googled it.
A DWI case is not like any other criminal case because it contains a specialized charge. Sometimes, defense attorneys do something similar to this. They head to Google to learn how to defend these cases. However, they just do not know how to do it. Therefore, this is not a case that anybody should ever even try to represent on his own.
A person should never represent himself in any case. Science lurks behind a DWI case, whether it involves alcohol or drugs. It takes years of experience to learn how to defend these elements and the backing science.
This is very similar to doctors who go to medical school. Lawyers who practice DWI defense learn and take classes about the science behind the DWI case. This is how they learn how to defend them and how to defeat these cases.
My Friend Had A DWI And Was Very Intoxicated. However, He Had A Successful Case. If I Do The Same Things, I Will Get The Same Results.
The past is history. The friend’s case has absolutely nothing to do with this person’s case. Every case, no matter how similar they seem, is not the same. No two people are the same, and nobody acts the same, nobody speaks the same, nobody looks the same, nobody drinks the same, and nobody metabolizes the same.
The fact that the friend had a successful case does not mean the current case will be similar. A successful case, to some people, means that the friend did not go to jail, when a successful case to us means that the case is dismissed or reduced.
People should never represent themselves or compare their case to somebody else’s case. No comparison can exist. No two people have the same fingerprints, and no two people have the exact same DWI case.
I Have A Relative Or A Friend With A Relative Who Practices General Law. He Could Help Me With This, Right?
In reality, most lawyers who do not do DWI work can help in the very beginning. After they realize they’re over their head in this area of law, they will help the person find a DWI lawyer. Unlike any other case, a DWI case is not just a criminal case but a specialized case.
Just because someone is a former prosecutor or a criminal defense attorney, this does not mean he is a DWI defense attorney. This is why it is so important for people to find an experienced DWI attorney, like myself. This is my focus.
After Comparing Lawyers, I Should Probably Go With A Lawyer Who Guarantees Success.
This is a big misconception.
If someone finds a lawyer who makes a guarantee, then this lawyer should be the last person does business with. This is because a lawyer and a DWI case rely on prosecutions, judges, and outside forces. Guarantees don’t exist.
A lawyer can only guarantee what he will do. He can only guarantee what he’s done before, how his expertise will enter into the equation. I can guarantee the job I will do for the case, and I can guarantee how I am going to do it. I cannot guarantee an outcome, because I cannot see into the future.
Always stay away from a lawyer who makes a guarantee of success.
I Should Shop Around And Find The Best Attorney Deal, The Cheapest Deal.
A lot of people say this. Frankly, the saying “penny wise and dollar foolish” applies to these people. Usually, if a deal sounds too good to be true, it probably is.
Lawyers who do a superior job and are willing to put time and effort into helping to resolve a case, to look for the success, and to look for the defenses are not the cheapest lawyers. The lawyer with the best deal is probably going to give the equivalent of what he was paid. This is seen in court every day, and it can be tragic.
We suggest that people not look for the best deal, but look for the best and most experienced DWI lawyer.
People Believe That DWI Cases Happen To Alcoholics And Criminals Only.
Unfortunately, this is not the way it works. In this day and age, DWI happens to more falsely accused people than anyone else. This has nothing to do with alcoholics or drunks.
We believe that people who are very drunk usually do not get into the car because they physically cannot. These days, because of the politics behind DWIs, we find people driving somewhere between the hours of 10:30 at night and 3:30 in the morning are generally pulled over because the police are looking for DWIs. They think that anyone who is out on the road between the hours of 10:30 and 3:30 in the morning is coming home from a bar.
Note that these people may have only one or two drinks. It is not illegal to drink and drive; it is only illegal to have more than 0.08 percent of alcohol in your system or to be impaired to a substantial extent by alcohol or drugs. A majority of accused people are not alcoholic or drunks.
I Did Not Like What Happened At My Last DWI Case. For This Second DWI, I Don’t Think Hiring An Attorney Will Be Beneficial. I Should Throw Myself At The Mercy Of The Court.
This is a big misconception offering a very dangerous position. For somebody with a prior DWI in New York within the last 10 years, the case will be elevated to a felony, which is a much more serious charge.
Although the current charge will not be elevated, the possible punishments will be elevated. The person should simply not hire the same lawyer who created the previous, bad outcome. He should hire somebody like me, who is a very experienced DWI defense attorney.
My DWI Was A Prescription Medication For Sleeping. I Won’t Be Subject To The Same Penalties.
New York does not care what impaired the person. It is not legal to drive a motor vehicle in New York if you are impaired by a drug, alcohol, or a combination of the two. It does not matter if this was a prescription drug or over-the-counter medication.
If the drug makes the person less than 100 percent alert, then this can be as bad as driving a car when he is very tired. If someone cannot operate a motor vehicle properly, then he shouldn’t drive. This will draw the attention of the police.
The police will pull the car over. They will look for medication, either legal or illegal, and alcohol. However, a person cannot operate a car if they are not able to do so properly. Period.
A DWI Conviction Is Really Not Such A Big Deal. Employers Will Understand That.
This is a big gamble. Like everything else, the person must put in an application. Perhaps the employer makes it a big deal, perhaps he won’t. A person can never know.
If someone is going to apply for a job, then having a record is bad, but having a DWI may be a big problem, especially if the person wants to be a school bus driver or involved with children. Depending on what the job is, the potential employer may not understand.
DWIs affect every employment, some to a lesser extent. Some could cost a person their job. Airline pilots, people involved in the school system, people in the transportation business, and people with commercial driver’s licenses have issues. A DWI conviction may be a very big deal to an employer. The employer may not understand, which is why it is important to have an experienced DWI attorney handle the case.
For more information on Misconceptions of DUI Cases, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (516) 679-0400 today.
By Eric Sachs