The legal acronym “DWI,” or driving while intoxicated, is a term used to refer to the criminal offense of drunk driving. In some states the term “driving under the influence” or “DUI” may be used interchangeably with DWI. In other states, the DUIs and DWIs are actually separate criminal offenses where a DUI is the offense related to driving under the influence of drugs or substances, and a DWI is the offense related to driving while intoxicated.
The state of New York does not distinguish a DWI from a DUI when charging someone with a drunk driving violation. In New York, the term DWI is the term utilized to cover all types of impaired driving, ranging from driving drunk to driving while under the influence of drugs, such as marijuana or other controlled substances. Further, in New York, it does not matter whether or not the drug is prescribed, illegal, or abused, so long as the individual is driving impaired, they will likely be charged with a DWI.
A DWI charge can often become a more serious offense depending on the level of intoxication of the driver, as well as the circumstances surrounding the stop. New York laws are increasingly complex in that a person may be charged with a DWI, underage DWI, alcohol-”DWAI” (“driving while ability impaired” by alcohol), drug-DWAI (driving while ability impaired by drugs), combination-DWAI (driving while impaired by both alcohol and drugs), and aggravated DWI. The charge will be dependent on the results of the tests administered at the scene, the observations of the arresting officer(s), as well as the circumstances.
What Does the Term BAC Mean?
The level of intoxication, also known as a driver’s blood alcohol concentration, or “BAC,” is the amount of alcohol that is present in an individual’s bloodstream. When an individual is pulled over, authorities often utilize breathalyzers to measure an individual’s BAC. Then, the charge given to the individual by the officer will be determined on the level of BAC present in the system. If a driver has a high BAC level, they will likely be charged with a DWI violation and may receive a harsher sentence than someone who has a lower BAC.
However, New York has a strict zero tolerance law that prohibits operators of motor vehicles under the age of 21 from having any trace of alcohol in their system. As such, even a 0.01% BAC will result in an underage DWI charge for those that meet the criteria for the charge. It is important to note that the standard legal limit in New York is a BAC level of 0.08%. As such, any amount over the limit will result in a DWI charge of a misdemeanor, along with the other state penalties that go along with such a charge. However, BAC levels of over 0.18% will result in an aggravated DWI charge.
What Is Probable Cause?
If a police officer suspects that a person may be operating a vehicle while intoxicated, they will have probable cause to pull that person over. Examples of evidence that would allow an officer to establish probable cause to pull someone over include observations of a person speeding or swerving all over the road. Further evidence would include the officer actually observing open containers or drug paraphernalia in the vehicle.
After establishing the probable cause necessary to pull the driver over, the officer will likely request that the operator of the vehicle step out of the vehicle and submit to a test in order to determine whether or not they are operating the motor vehicle while intoxicated. Examples of the tests that may be administered by an officer at the scene include:
- Breathalyzer Test: A breathalyzer is a handheld device that measures the concentration of alcohol in a person’s system, by having the individual blow into the device. This test may be administered either at the scene by the officer or at a police station;
- Blood or Urine Testing: Blood or urine testing often requires a medical professional to conduct the testing and produce lab results. As such, they are typically administered at the booking facility rather than at the scene. Further, such testing may typically only happen after the police have obtained a search warrant signed by a judge to conduct the testing. In Illinois this is not the case due to implied consent laws; and/or
- Field Sobriety Tests: Field sobriety tests are commonly administered at the scene. Field sobriety tests involve a variety of different tasks that are designed to test a person’s balance and soberness. Examples of tasks administered by officers include touching one’s finger to their nose, reciting the alphabet backwards, walking in a straight line, or even standing on one foot while counting.
If a driver fails any of the above tests, the officer will then have grounds to arrest them at the scene for driving while intoxicated. Additionally, if a person refuses to perform any of the tests that can be administered at the scene, the officer may still arrest the individual if they suspect that they are impaired and driving while intoxicated.
It is important to note that circumstantial evidence such as the smell of alcohol on a person’s breath or observation of open containers in the vehicle, can also be used as evidence to arrest the driver for driving while intoxicated.
If I Am Arrested for DWI in New York, Am I Required to Take a Chemical Test?
The legal answer is no, you are not required to take a chemical test at the scene. In New York, anyone who has been stopped or detained under suspicion of operating a motor vehicle while intoxicated, may choose to not take a breath or blood test that measures their blood alcohol content at the scene.
However, in New York, refusing to submit to a breath or blood test at the scene will have serious and immediate consequences, such as the immediate suspension of your license and criminal fines. This is due to the state of New York’s implied consent laws.
What Is Implied Consent?
Similar to other states, New York has implied consent laws. New York’s implied consent law states that any person who drives or is in physical control of a motor vehicle on the public highways is deemed to have given their consent to a chemical test for the purpose of determining the content of alcohol or drugs in their blood.
New York’s implied consent laws make it easier for an officer to administer the above tests at the scene, as drivers who refuse the tests will have violated the implied consent laws and face immediate penalties.
What Are the Penalties for Refusing to Take a Chemical Test?
As can be seen, the penalties for refusing to take a chemical test in New York are great. Once again, wn individual is lawfully arrested for a DWI, and they refuse to submit to the testing outlined above, their driving privileges will be immediately suspended and they will be fined. The severity of the penalties for refusing a breath or blood test are dependent on whether or not the defendant is a first time offender, as well as the age of the offender.
If the defendant is a first time offender, their license will be suspended for one year if they refuse the test, and they will be fined $500. A second offender will have their license suspended for 18 months, and receive a fine of $750. Third time or subsequent offenders will have their license revoked indefinitely and receive a fine of $750.
If an individual’s license is revoked indefinitely, they may apply to reinstate their license after 5 years. Underage motorists who refuse to take the test, must pay a $300 fine, and their license will be suspended for one year. Further, they must pay a $100 application fee to regain their license after the suspension.
Do I Need a Lawyer for Help With DWI Charges in New York?
In New York DWIs are serious criminal offenses and have severe and immediate consequences. Thus, if you refused a chemical test when stopped on suspicion of a DWI, or after being arrested, you should immediately contact a New York DUI/DWI lawyer.
An experienced New York criminal defense lawyer will be able to help you fight any charges, as well as possibly help you reduce the penalties associated with refusing the test. Additionally, an attorney will also be able to represent you in court, if necessary.
