So You Have Been Arrested for DWI in New York?


In New York, the law is getting increasingly more strict with individuals convicted of drunk driving. If you have just been arrested for Driving While Intoxicated (DWI) for the first time, you may feel uncertain about the resulting court proceedings. Unfamiliar with the criminal justice system, you may consider having a "friend of a friend" or your family's lawyer represent you on the charges. This may be a critical mistake. DWI law in New York can be quite complex. Furthermore, the stakes are high-even as a first time offender, you may face hefty fines, probation, revocation of your license and a dramatic rise in your automobile insurance rates. You may even be sentenced to some jail time. Therefore, it is important to hire a defense attorney who has experience in this area of law.

Challenging Drunk Driving Charges

Even if you believe your situation provides the prosecutor with a "slam dunk" case against you, an experienced DWI attorney will be able to examine your case and make challenges, where appropriate. The critical elements of a DWI conviction are as follows:

  • driving or operating a motor vehicle
  • on a road or highway
  • while having a Blood Alcohol Content (BAC) level above the legal limit.

A DWI conviction depends on a test of your BAC. Unfortunately, often times a person is not even the slightest bit aware of what his or her BAC is prior to stepping into a vehicle. In fact, you may have been completely unaware of your "guilty" condition prior to having your BAC tested. Nonetheless, "intent" to drive drunk is not required for a drunk driving conviction. Still, close cases provide the greatest basis for a successful defense. For example, where 0.6 percent BAC is just within the legal limits and you are found to have 0.7 percent BAC, your attorney may have a strong case when arguing the invalidity of your blood alcohol test. (Also, in a close case, an experienced defense attorney may succeed in negotiating a plea to a lesser offense.)

Your BAC will be tested either through a Breathalyzer test, urine test or direct withdrawal of your blood. Although you may not have the right to dictate the terms of the blood-alcohol testing, you should be asked for permission prior to the administration of the test. Refusal to submit to testing, however, often results in revocation of your license. These tests, especially the Breathalyzer test, may be improperly influenced by a variety of factors including: prescription drugs and medical conditions, certain dental work, the use of chewing tobacco, and even burping in the middle of testing. Because the percentage of your blood that consisted of alcohol at the time of testing is critical to the case against you, an experienced DWI attorney will examine whether any of the circumstances of your testing can be challenged.

An experienced attorney will also examine whether it can be argued that you were not "driving" the vehicle prior to your arrest. Some states use the word "driving" in their statutes and others use the word "operating." While the definition of what constitutes "driving" a motor vehicle is more broadly interpreted than the definition of what is found to constitute "operating" a motor vehicle, in the appropriate situations, this element of the charge against you may be challenged. The relative success of these challenges generally depends on the trend of the actual cases interpreting the DWI statute in your state.

Often times, just sitting behind the wheel of a running vehicle will constitute "driving" or "operating" a vehicle. If, however, you were unconscious behind the wheel of a car with a running engine, there is an argument that you were not "driving" or "operating" the vehicle while intoxicated. On the other hand, even in cases where a person is found sleeping in the car with the keys in the ignition, courts have found this to constitute "operating" a vehicle or being in the "physical control" of a vehicle. Some jurisdictions have been especially stern, finding that DUI statutes are meant to prevent drunk drivers from getting into cars, except as a passenger. Further, there is a good argument that can be made that you were not "operating" a vehicle, which was in fact inoperable prior to your arrest. Moreover, the prosecution should be forced to prove that you were actually the individual driving the vehicle.

Your attorney may also raise the argument that you were not driving a "motorized vehicle" as intended by the applicable laws in your state. For example, although motorcycles clearly constitute a motorized vehicle, the laws of your state might not encompass a riding lawn mower. Finally, your attorney may argue that you were not actually driving on the "highways" or "roads" encompassed by the DWI law of your state. Some examples of areas that have found outside of the scope of various states' DWI statutes are driveways, ditches, frozen lakes and parking lots. These court decisions are, however, made on a case by case basis and can vary from state to state and even from court to court within the same state.

Drunk Driving Law in New York

New York State DWI Law is governed by section 1192 of the Vehicle and Traffic Law. Section 1192-3 addresses the "common law" theory of DWI based on the police officer's physical observations of an individual's condition (i.e. odor of alcoholic beverage on breath; bloodshot and/or glassy eyes; impaired speech; impaired motor coordination etc.). Section 1192-2 governs the "statutory DWI charge" where an individual's Blood Alcohol Content (BAC) is .08 or greater as determined by breath, blood, urine or saliva test. In addition, it must be noted that a person charged with DWI who has a prior DWI within 10 years faces felony DWI charges which carries a potential maximum jail sentence of up to 4 years.

The controlling caselaw in New York State concerning DWI charges under § 1192-3, which is the standard the Courts follow, is People v. Cruz, 48 N.Y.2d. 419, 399 N.E. 2d. 513, 423 N.Y.S. 2d 625 (1979). Here, the Court held:

The operator must be able to operate a motor vehicle as a reasonable and prudent driver. If the driver is incapable of employing the physical and mental capabilities which he/she is expected to possess in order to operate a vehicle as a reasonable and prudent person -- due to voluntary alcohol consumption -- that operator is intoxicated.

This standard must be met before a driver can be convicted of DWI under § 1192-3.

As you can see, the laws surrounding DWI offenses in New York State are complex with very serious consequences. It is important that you hire an attorney experienced in DWI cases in order to protect yourself against a "wrongful" conviction.


DUI/DWI charges are much more than a mere traffic violation and should be taken seriously. It is essential that you choose an attorney to represent you, who has experience with DUI/DWI law in your particular state. You should ask potential attorneys about their background in this area of the law and about their outcomes in representing clients charged with drunk driving. Be curious, ask lots of questions, and make an informed decision. Challenging drunk driving charges is never easy, but an experienced attorney will recognize and address the weaknesses in the case against you.

Villarini & Henry, LLP and Our Experience with DWI Defense

Our firm has extensive experience in handling criminal cases, including DWI charges. Daniel J. Henry Jr., Esq., a partner in the firm, concentrates his practice in criminal law defense. He has handled hundreds of alcohol related driving offenses where he has successfully gained acquittals on the underlying DWI charge facing his clients. Mr. Henry is a member of the National Association of Criminal Defense Lawyers. He has written numerous articles on criminal law issues and has lectured on topics concerning criminal defense litigation including a seminar on "Traffic and Impaired Driving in New York State."

Mr. Henry can be reached by phone at (716) 312-1136 or at his e-mail address [email protected]

It is important that you are properly represented and that your rights are protected when faced with a DWI or alcohol related charge.

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