New York DWI Defense Lawyer Blog

Okay, you did it. You were stopped for DWI and refused to take a breath or blood chemical test to determine your blood/alcohol content. What happens next?

At your arraignment, the judge will immediately suspend your driver license, pending a hearing before a Department of Motor Vehicle Administrative Law Judge. The hearing must take place within 15 days after the arraignment/suspension.

At the hearing the Administrative Law Judge will determine if the temporary suspension should be altered to a revocation for one year. This revocation will continue even if you are subsequently acquitted of the underlying DWI charge.

It is important that the decision to take or not to take the chemical test should not be made without considering the consequences of your decision. Your next course of action should be to contact an attorney who is experienced with New York DWI laws.

Everything has changed in regard to how to defend a person who has been arrested for DWI in Upstate New York State. It is absolutely critical that you to call a highly experienced DWI lawyer who is on top of all DWI laws.

The major deciding factor in advising a client who has just been arrested for DWI, whether to submit or refuse to take a chemical test, is just how drunk they are. This determination is usually made in the wee small hours of the morning over the telephone when the client calls a lawyer. Few intoxicated drivers will be completely candid with an attorney about the level of their intoxication or how much alcohol they have consumed. In fact, many drivers are unable to remember how much they drank. Frankly, this is not the type of conversation an attorney wants to have with their client when, in all probably, there is a police officer in the room with the client when he calls his lawyer.

This is a delicate situation which requires a highly competent DWI defense attorney to assess the level of intoxication by judging his client's speech patterns. This is not the time to risk hiring an attorney who isn't fully knowledgeable in the area of DWI defense. If the lawyer makes a mistake and advises the motorist to refuse the test, he subjects his client to the whole range of potential penalties mentioned in "(Part I)".

So Why Not Just Advise the Motorist to Take the Test?

If the attorney advises the motorist to take the test and the results come in at a blood alcohol content (BAC) of 0.18, the charge would be elevated to Aggravated Driving While Intoxicated (ADWI). The elevated charge results in additional penalties, license sanctions, and fines, and has plea bargaining restrictions.

Recent amendments to the New York State Vehicle and Traffic Law (VTL) restrict the prosecution from agreeing to a reduction of the misdemeanor Aggravated Driving While Intoxicated to a traffic infraction of Driving While Ability Impaired (DWAI), which carries lesser license and fine penalties. The only reduction available to the District Attorney is a reduction from Aggravated Driving While Intoxicated to the misdemeanor of DWI. Indeed some District Attorneys have a policy of not authorizing a reduction of any kind for an original Aggravated Driving While Intoxicated .

The results of a plea bargain to a misdemeanor DWI subjects the motorist to the more severe penalties including the installation of an Ignition Interlock on any vehicle owned or operated by the motorist.

A DWI arrest in Upstate New York State can impact you for the rest of your life. Be sure to call a highly respected and immensely qualified DWI defense lawyer.

DWI defense lawyers like myself are frequently asked this question. In the past, the answer was clear. However, with several recent legislative changes, the bright line between taking or refusing the test has dimmed. It is even more critical to have a DWI defense attorney who has extensive background in all aspects of DWI. My 50-year experience in this area is your best defense.

Should I Submit to a Chemical Test if I Am Arrested for DWI in Upstate New York?

If a driver agrees to take the chemical test, the door is left open to plea bargain a misdemeanor DWI down to a traffic infraction of Driving While Ability Impaired (DWAI). Attendance at a Drinking Driver Program would probably be required, and the motorist might be able to obtain a conditional license during the 90-day term of license suspension.

Each arrest situation is different, but generally, I would advise the driver to take the chemical test, providing there were no other aggravating factors. As an experienced DWI attorney, I would advise the driver to take the chemical test.

Should I Refuse a Chemical Test if I Am Arrested for DWI in Upstate New York?

By refusing to take the chemical test, the motorist's license is subject to immediate suspension upon arraignment , with no driving privileges. At a Department of Motor Vehicle (DMV) hearing, which has to be conducted within 15 days from the arraignment, the administrative law judge can revoke the motorist's license for one year. There is a civil penalty of $500 and a $250 driver improvement fee (per year for 3 years).

Aggravating factors, such as resisting arrest, or If the DWI arrest followed a serious personal injury accident, or if it were a felony DWI, or if the motorist was a repeat DWI offender, I would advise my client to refuse the chemical test.

Recent legislative changes which affect the strategy for defense of a DWI arrest in Upstate New York complicate the above scenarios. I will address the deciding factors in "(Part II)".