What else can constitute "probable cause" to arrest someone for DWI?
Officers will generally cite things like "glassy eyes", "odor
of alcohol", "poor motor coordination", "slurred speech", etc., as probable cause to arrest if a suspect refuses to take SFST's.
DWAI a misdemeanor?
No, DWAI is a violation, not a misdemeanor or felony. Nonetheless, a conviction for the offense can have very
serious consequences. However, a similar sounding offense, "DWAI-Drugs", is a misdemeanor and can be charged as a felony for second
Can I be convicted of DWAI-Drugs for using marijuana and driving?
Yes, in theory you can. However, the standard chemical
test used by most police agencies to detect drug use is a urine test. These tests do not show how much (if any) of a controlled substance
is in a persons blood at the time they provide a urine sample. Instead, they only show how much by-product of metabolizing the drug
is present in the urine. This is an important difference, since the by-products of metabolism can appear for days and sometime even
weeks after drug use (especially in the case of marijuana).
What is a "field" or "preliminary" breath test and how does it differ
from a "chemical breath test"?
When a police officer is trying to determine if he has probable cause to arrest a driver he will typically
use the SFST's (see above) and a hand held "breath test" device. The hand held device can be used to help establish probable cause
to arrest. But, the device is not considered reliable enough to be used in evidence at a trial. Instead, it is generally only used
to show that there was some alcohol in a driver's system. A chemical breath test device is a larger system that is set up at a police
station. It is designed to measure the amount of alcohol vapor in a person's "deep lung breath". Based upon some complex (and not
always reliable) scientific assumption the alcohol vapor in a given sample of breath is claimed to be similiar to the amount of alcohol
in the blood of the person who gave the breath sample. DWI attorneys frequently challenge the use and reliability of chemical breath
tests. The underlying science is questionable at best and for the results to have any evidentiary value the test must be done according
to a strict procedure and the operator must have be certified by the NYS Department of Health to give the test.
What happens if a
driver refuses to take a "chemical breath test"?
Prior to administering a chemical breath test the officer involved is required to
advise the subject that should he refuse to take the test the NYS Department of Motor Vehicles may revoke his license for one year.
The officer will typically ask the subject twice if he is refusing to take the test and if he understands the impact of such a refusal.
If the driver persists in the refusal the officer will note that in the arrest documents. When the driver first appears in court the
judge will suspend his license pending a "refusal hearing" before a judge employed by NYS DMV. The hearing must take place within
a relatively short time after the initial court appearance.
What happens at a "refusal hearing"?
At the hearing the officer involved
will testify and the subject of the hearing has a right to testify, but cannot be forced to do so. The subject has a right to be represented
by an attorney, but a court will not appoint an attorney to represent him if he cannot afford one. At the hearing three basic questions
are addressed: 1) did the officer have a reasonable cause to stop the subject's car?; 2) did the officer have probable cause to arrest
the subject?; 3) did the subject knowingly refuse to take the chemical breath test? Each of these three points must be proved by a
majority of the evidence (legally known as the "burden of proof" being a "preponderance of the evidence"). This is a much lower standard
of proof than is required at a trial to convict someone of a criminal offense. If the judge finds that the officer met the standard
of proof the one year revocation is ordered. If the judge finds the standard of proof was not met the driver's license is returned
to him. A subject has a right to appeal the decision of the judge (but, appeals are rarely won).
DWI & DUI FAQ's
What are Standardized Field Sobriety Tests (SFST's)?
Law enforcement personnel use a variety of tests that are supposed help them
determine if someone is intoxicated or impaired by alcohol or drugs. Most commonly used are three tests that the National Highway
Traffic Safety Administration has approved as having a scientific basis. These are the horizontal gaze nystagamus(HGN), heel-to-toe
walk and turn and the one leg stand test. The HGN test is designed to test how smoothly a suspect's eyes can track from left to right
and back again. The other two tests provide some information as to the ability of a suspect to perform activities which require divided
attention and also provide information on the the motor coordination of a defendant. Different police agencies or officers may also
use the alphabet test.
Should I take or refuse the SFST's?
Police officers use SFST's to determine whether or not they have "probable
cause" to arrest a suspect for DWI. Many attorneys consider these tests to have been designed to generate "failure" grades and do
not accurately determine whether someone is or is not intoxicated. Most attorneys recommend that people stopped for DWI should NOT
take SFST's. A refusal to take SFST's can result in a traffic ticket being written (in NYS).
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Unlike most attorneys I came to the practice of law as a second career. Prior to becoming an attorney I spent 20 years as a business
executive, eventually running a large subsidiary of a Fortune 500 company. While those years in private business were challenging
and rewarding, there came time that I wanted to do something different and more directly related to assisting other people. So, I
left the business world, went to law school, passed the New York State bar exam and became a practicing attorney. You can read
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Glenn W. Magnell
162 Main Street, Goshen, NY 10924