Westchester County and New York DWI Defense Attorney
Blood Alcohol Content
Harold Dee, a former NYS and NYC Traffic Court Judge, has thirty four years experience in the practice of law. Mr. Dee has represented thousands of motorists, conducted hundreds of trials, and is well versed in the defense of Drunk Driving charges. Before discussing a plea offer he will first look at the propriety of the car stop and the actions of the arresting officer before, during, and after the arrest. If the car stop appears to pass constitutional muster, is found not to be violative of your rights, was a proper stop, made for cause, with a proper BAC reading, then we would examine a possible disposition with the District Attorney’s office. Experience has shown any settlement or disposition of the criminal case depends on the reported breath, blood or urine alcohol content (BAC) plus any aggravating circumstances. If the motorist is additionally charged with a REFUSAL to submit to a chemical test ( breath, blood or urine) to determine the alcohol content please see REFUSAL below.
County DA’s offices make plea offers based on the facts and circumstances of the individual case. If a “plain vanilla” car stop, namely no prior alcohol or drug driving history, no multi car accident, no refusal to submit to a breath or chemical test, no irate citizens or extenuating circumstances, and based on a simple traffic violation, with a “BAC” in the low teens, there is a good chance that an offer would be made to allow a Defendant to plead to a lesser included charge of DWAI, Driving While Ability Impaired, a traffic infraction and not a crime. If the circumstances surrounding the present DWI charge include vehicular homicide, a serious accident or fatality, a high BAC (.18+) or any priors, there would normally not be an offer to a lesser charge. See increased sanctions below.
If the Defendant has suffered any reported alcohol related convictions in NY, Canada, a sister state, or elsewhere, there would usually not be an offer beyond a plea to the charge without the DA recommending three years probation. The Westchester District Attorney’s Office considering prior alcohol convictions for up to twenty years. NYC, and Nassau are more stringent. Dutchess and Rockland Counties have cutoffs depending on the BAC reading. Putnam is the most enlightened as the facts and circumstances of each arrest is judged individually.
First Time Offenders
If a motorists has a BAC of greater than .08, his license is suspended for thirty (30) days on the arraignment date, which is the date that you are ordered to Court to answer the charge. If the BAC is .08 or less, no license suspension is ordered. The suspension of the full license will continue until the underlying charge is disposed of, either by a guilty finding to the charge or a guilty finding to a reduced charge or an acquittal.. Conditional driving privileges (work, school, child care, medical) are typically granted after thirty days of the license suspension upon application to DMV. The question then remains “How do I get to work for the first thirty days before I am eligible for a conditional license. Following is a discussion of the Hardship hearing.
If no prior alcohol conviction w/in 5 years, and no refusal, etc., a motorist is entitled to a HARDSHIP HEARING. The full license is surrendered at the arraignment and continues for thirty days. The hardship hearing is a way to sustain limited operating privileges for the first thirty days.
To prevail at a HARDSHIP HEARING and be able to maintain very limited driving privileges during this 30 day period, namely to and from work and not during work.
The Defendant must show that there is no public transportation available, the cost of cabs are prohibitive, and there are no family members or co-workers that can drive him/her to work. The Defendant must also normally bring a witness to swear to what he/she says. Map Quest and county train and bus schedules can help in showing an inability to prevail using the public transportation system . Either you can’t get to the transportation hub or they run too early or not late enough or are not located near your home or job. Small cab companies may be cost prohibitive, already have early morning cabs dedicated to existing customers. Many clients carry tools, instruments or equipment or have bad ankles, knees or are otherwise unfit or unable to travel on public transportation. Be prepared to show these or similar circumstances if you wish to drive to work for the first thirty days after surrender of your NY license. Sister state drivers only lose NY privileges and are not affected in thier home state unless convicted.
Win or lose the hearing, after thirty days, if the Defendant is otherwise eligible, a request for a conditional license may be made at a local DMV for seventy five ($75) dollars. The CONDITIONAL LICENSE is broader than the Hardship license, allowing travel to, from, and during work, child care, medical and dental for driver and members of his/her household, and a weekly three (3) hour shopping block. The conditional status continues until the case is decided. Driving outside work hours or in a different geographical area that the limited privileges have been granted for can result in the license being revoked.
A conviction of any traffic violation, including adult seatbelts and cell phones, will result in a revocation of the conditional license with no eligibility for a conditional or restricted (3 speeds or 11 points w/in 18 months) license for another five years. If this happens, plead not guilty and consult with a Vehicle and Traffic Lawyer.
November 1, 2006 brought a new DWI charge, Aggravated Driving While Intoxicated, for operation of a motor vehicle with a BAC of .18 or higher. A conviction carries penalties of fines of $1000.00 to $2500.00 and possible imprisonment for one year.
If you have had a prior alcohol violation within the last five years there is no eligibility for a hardship license or for a conditional license, see below. Additionally, There will not be a plea offer to a lesser charge. If there is one prior conviction for a DWI, a misdemeanor, within ten years of the instant arrest, than the instant charge, if a BAC over .08, would be a Felony where it would be heard in the County Seat. If the prior conviction is more than ten years prior, then the instant charge is a misdemeanor and the proceedings stay in the local criminal court.
The Felony charged would be a class E, conviction of which carries a sentence of two and one quarter (2 1/4) years to four and a third (4 1/3) years in a NYS prison. Plea offers are common but include probation with monthly visits and urine checks along with loss of license for up to five years.
If the prior conviction was one for VTL 1192.1, Driving While Ability Impaired (DWAI), a traffic infraction and not a crime, the instant DWI charge would be classified as a Misdemeanor and would be prosecuted in the local town, village or city court where the arrest occurred.
A motorist is deemed to give his/her consent to a breath or bodily fluids test in order to determine the BAC of the Motorist. A Refusal, if sustained at a DMV Refusal Hearing before an Administrative Law Judge (ALJ) for the Department of Motor Vehicles, causes a minimum twelve month revocation of driving privileges. A plea of guilty to any alcohol related charge (DWI or DWAI) from the same car stop as the Refusal may allow the motorist to enter the Drinking Driver Program and obtain a Conditional license (12 months) for use to, from and during work, child care, medical and dental for the motorist and members of the household. Additionally, DMV offers a three hour weekly block of time of your choosing for personal matters.
The Refusal Hearing must be made available to the Defendant within fourteen days of the arraignment on the DWI charge. The license is surrendered at the Court arraignment and there is no eligibility for either a Hardship or Conditional license during this 14 day period. The motorist is off the road until the Refusal Hearing. If the Officer is a “no show” at the walk in hearing the motorist’s license is restored until the rescheduled date, probably in two to three months. If the officer appears the hearing may or may not be concluded on that day. If concluded and the motorist is found to have refused to submit to a breath, blood, or urine test, the license is revoked for a minimum of one year. At that point the only way to get back on the road with conditional privileges is to plead guilty or be found guilty of any alcohol related violation (DWAI or DWI) assuming no prior alcohol charges within the last five years.
This decision is made at a DMV Administrative Hearing, not a criminal court. The Judge can convict you on the Officer’s paperwork even if the cop doesn’t show a second time. The standard of proof is “Clear and Convincing” not “Beyond a Reasonable Doubt”. If the cop didn’t show the first time, at the next appearance some three months hence, whether the cop appears or not, the hearing will normally go forward.
If the Judge finds that you did in fact refuse to submit to a test after receiving clear and unequivocal warnings, the license will be revoked for one year. If on the other hand, the Judge decides the paperwork, procedure, or testimony was not proper, then the ALJ could “close” the case. The license would be restored as of that midnight!
The Refusal Hearing is welcomed by many DWI defense attorneys as an opportunity to examine the state’s chief witness. This firm makes it a practice to bring ourv own court reporter so as not to wait months for an often incomplete record typed upstate from a tape recording made at the hearing.
Surviving the DWI Car Stop
The DMV Refusal Hearing
Collateral Consequences of a Drunk Driving Conviction
Leandra’s Law – The Ignition Interlock Law for convictions of Driving While Intoxicated (DWI)
Frequently Asked Questions about DWI
Westchester County Criminal Attorney, Bedford DWI Lawyer Harold Dee Law Firm
Contact Peekskill, Rye, Mount Pleasant, Ossining, Mamaroneck Courts
Call us for a FREE Consultation 1- 800-Harold Dee (800.427.6533) or call local (914.241.7963)