When a person has been drinking in New York, the last thing that he wants to see in his rearview mirror is the flash of police lights. However, there are thousands of arrests made each year where the charges involve driving under the influence of drugs or alcohol.
One of the most common Driving While Intoxicated (DWI) arrests is misdemeanor DWI, based on the results of a breath, blood, or urine test that shows that a person has a blood alcohol content (BAC) of .08 or higher.
A misdemeanor DWI charge in New York City is a “per se” matter, meaning that the individual is subject to criminal prosecution based on the simple fact that his BAC was over the legal limit of .08. There does not have to be any evidence of impaired driving, so the prosecution’s burden is met by introducing the results of the chemical test. That, of course, presumes that we just sit back idly while we allow those test results to be admitted into evidence.
At Greco Neyland, PC we will fight the DA every step of the way. We have to make every concerted effort we can make to prevent those test results from being admitted in to evidence. Don’t ever assume just because you blew over a .08 that your case is hopeless and you can just deal with the conviction.
A law enforcement officer must have probable cause to believe that a driver committed a traffic violation in order to pull that driver over. Once they have made contact with the driver, they must have probable cause to believe they are intoxicated in order to detain them for further investigation.
Many times, an officer claims to have probable cause as the result of observing the driver and making a determination that the driver’s performance indicates some type of impairment. Once the driver has been stopped, the officer may develop further probable cause by subjecting the individuals to field sobriety tests, which are comprised of 3 tests.
The three Standardized Field Sobriety Test (SFST) are; the Horizontal Gaze Nystagmus (HGN) test (which involves visually tracking a stimulus); the One-Leg Stand (OLS); and the Walk and Turn (WAT).
However, there are officers who administer non-standardized tests as well. Those non-standardized tests bear no indicia of reliability as they have not been tested and proven to have any scientific reliability whatsoever.
In addition to misdemeanor DWI, there is something known as “common law” DWI. This charge is based on the outward signs of an individual’s impairment, relying on witness testimony to prove that a person was impaired.
This may be charged based on weaving back and forth through lanes of traffic, driving exceptionally slowly, spending too much time at a stop sign or other traffic control device, or driving in some other manner that stands out as especially unusual. Once the person has been stopped, his performance on the SFSTs demonstrates a significant level of impairment in most of these “common law” DWI cases.
In addition, physical indicators such as bloodshot eyes and slurred speech also may be used to build a case against the accused. When these cases are brought to court, the state prosecutor relies on evidence of visible intoxication, which can be refuted by evidence of other factors that could have led to the observed behavior, including allergies and fatigue. What is especially unusual about this type of case is that the individual may be below the legal BAC limit.
If convicted of common law DWI, a person may face up to 12 months in jail and the loss of driving privileges for six months. Frequently, a person is charged with both misdemeanor DWI and common law DWI, especially if a person with a BAC of .08 percent or higher was showing obvious signs of intoxication.
There are many circumstance where a person has a couple of drinks and then gets into his vehicle believing that he is perfectly fine to drive, only to find himself facing charges of driving while intoxicated. Often, a prosecutor will attempt to convince this person that there is no point in fighting these charges and to simply accept a plea.
However, there are many reasons to fight these charges, including the criminal record that results and the potential for far more serious charges in the event of a subsequent DWI stop, and the skilled and tenacious New York misdemeanor DWI lawyer at Greco Neyland, PC are ready to fight on your behalf.
We have offices in Manhattan, New York so that we can meet the legal needs of our clients in all five boroughs. To schedule a free consultation, call us at (212) 951-1300.
Our NYC criminal defense lawyers assist clients accused of or charged with the following: