Driving While Intoxicated



Drunk driving in New York State is prosecuted under either or both of two theories: common law drunk driving and driving while one has more than .08% of one gram of alcohol per liter in one’’s bloodstream. Yet a third option for prosecution is Driving While Ability Impaired by Drugs and a fourth is Driving While Ability Impaired by Drugs in Combination With Alcohol,which as the name implies, addresses the use of both substances.

The first theory is common law drunk driving where one is weaving in traffic and having obvious problems. The second theory ignores how the driver is doing, but makes it a criminal offense merely to have more than the limit allowed in your blood. Roughly, one ounce of alcohol will raise your blood alcohol content (BAC) .02%. In other words about 4 regular drinks or 4 regular sized beers would mean the “average” person may be legally considered drunk.  The liver metabolizes about one ounce per hour, so it can only lower your Blood Alcohol Content or BAC by .02% per hour. If one has 8 drinks in two hours, theoretically, one’s BAC would be .12% BAC (8 ozs. less 2 ozs. that get metabolized in two hours = 6 ozs. which, when multiplied by .02%, results in .12%). This is well over the limit. Each person will vary somewhat from this calculation, but this is a rule of thumb.

The third theory addresses situations in which substances such as marijuana or prescription drugs have been used, and the fourth applies when both alcohol and drugs are used together, used, even though the level of each would not necessarily be a crime in its own right.

A special class of the offense now inclued is “aggravated driving while intoxicated.”  in which the BAC content is.18 or over.

Having a child in the car when driving while intoxicated is a felony.


DWI under either theory is a misdemeanorpunishable by a maximum of one year in a county jail, and/or a maximum of a $1,000 fine (with a significant surcharge), and a revocation of one’’s license for a minimum of 6 months. and mandatory installation of an ignition interlock device in one’s automobile typically for a period of 12 months. Penalties increase for repeat offenders.

Aggravated driving while intoxicated  One with a BAC content of .18 or over carries penalties of $2,500, up to a year in jail, and mandatory installation of an ignition interlock device in one’s automobile.  Also,  a new crime of driving while under the influence of both alcohol and drugs was created.  Even a first time offender is required to undergo dependency screening.  Also, three DWI offenses within four years or four within eight years earns permanent license revocation.

If one is DWI and has a passenger under 16 years of age (known as “Leandra’s Law), the driver is also charged with a felony, which is punishable with state prison, even if only a first time offender.  The level of felony and punishment increase with certain conditions, and if the child passenger dies in a DWI accident, the driver may be sentenced, if convicted, up to 25 years in prison.

Anyone convicted of misdemeanor DWI is also required, at his own expense, to install an ignition interlock device in the vehicle which prevents ignition of the engine if the driver is not sober unless the court determines to waive it because there is no evidence of alcohol abuse or dependence.

When one’’s BAC is lower than .08 (of one percent), but over .07%, such a driver is deemed to be driving while his ability is impaired.  This means that while illegal, it is not a crime, but is a violation. It is punishable by a maximum of 15 days in a county jail and/or a maximum of $500 fine (plus a surcharge) and a suspension of one’’s license for 90 days. The penalties are, therefore, less and one’’s license is suspended, not revoked, and for a shorter period than for  the misdemeanor.

In New York State, you are penalized without being convicted! For merely being arrested for DWI and having a BAC of at least .08, your license is suspended at arraignment(when you appear before the judge the first time) and it remains suspended until your case is finished. If one meets certain criteria, one can obtain a hardship license for the first 30 days, and a conditional license thereafterwhile the case is pending in court. These are limited forms of driving privileges designed to avoid one from losing one’’s job, schooling, or health care. Keep in mind, the penalties after a conviction are in addition to this suspension pending prosecution.  For example, if one is convicted, whatever the suspension or revocation of your license imposed, starts anew.  One gets no credit for the prior time suspended pending the prosecution.

Last but not least, as a driver convicted of a drinking related offense, one is surcharged by DMV for the following three years for $250 per year, a total of $750.

If one is charged with a third drinking related offense or refusal of a chemical test or combination thereof, and has what is called by DMV as a Serious Driving Offense, one’s license will not be reinstated for 3 years at best(see chart elsewhere on our website)

A number of other variations may occur, too many to list in this short article, but which at consultation can be identified to your particular situation.


When a motorist is pulled over and the officer suspects that the driver has been drinking, he will almost always ask the driver if he has been drinking. In answering “yes” and answering further questions such as “how much” and “where,” the statements will be used as evidence against him in court. These are called admissions.  They also give the officer a basis for requesting the driver to step out and undergo testing. One is not obligated to answer these incriminating questions.

The officer will request the driver to perform psychomotor or field sobriety tests outside the vehicle which are claimed to test for lack of coordination and comprehension due to intoxication. These often include reciting the alphabet, following a pen with one’’s eyes, standing on one foot for a period of time, touching one’’s nose with alternate hands with one’s eyes closed and head tilted back, and walking a real or imaginary line heel-to-toe, turning, and doing it in the other direction (Try doing these after driving a while and see if you could pass even if you haven’’t been drinking! Remember, the littlest mistake or misunderstanding the direction is usually considered a failure.)

In addition to these psychomotor tests, an officer often gives the driver a field breath test by having him exhale into a handheld device called an alcosensor, about the size of a small mobile telephone with a tube in it. This gives the officer an unofficial BAC.  While this reading cannot be used in court at trial, a positive result is further evidence of intoxication and cause for arrest. The officer will testify at trial that the driver failed this test as further evidence of intoxication. If the officer believes the motorist has failed one or more of these tests, the officer places the driver under arrest and the driver is handcuffed.

At the police station, the driver is administered a breath test by use of a chemical test machine. This is much larger than the alcosensor. There are several different types

( e.g. the breathalyzer, datamaster, intoxilyzer) which all perform the same function. The driver is instructed to blow into it and it gives a numeric result, one’’s BAC. This result will also be used as evidence against the driver in court.

Alternatively, blood or urine tests may be used, the former for alcohol and/or drugs ingestion and administered at a hospital, and the latter for drugs, including marijuana metabolites, which urine test can be administered at the police station.


Because a driver is licensed to drive in New York State, as a condition of such license, he has agreed to submit to chemical testing if arrested for drunk driving. Before the testing, though, the officer will usually read to the motorist what will happen if he refuses to take the test.  However, this is not required unless the motorist is not consenting. The driver is warned that a refusal will result in a civil hearing conducted by the DMV at which the driver may be found to have refused the test without justification and that there was probable cause to arrest him for DWI, in which case one’s license will be revoked.   When arraigned in court on the DWI charge, the driver has his license taken from him (suspended) by the court until he has the hearing on the issue of the refusal. If one is later found by a DMV hearing examiner to have refused the chemical test for no legal reason, then the license is revoked without regard to the outcome of the criminal DWI case.  However, if the officer did not read the language explaining this to the refusing the motorist, it can be a ground for reinstating the license to the motorist despite the refusal.

As with any criminal matter, the motorist has a right to silence. This means that right from the initial stop the driver may decline to answer questions which might incriminate him. Such questions dealing with, for example, his drinking, where, when, how much, etc. After all, these responses can be incriminating statements. Of course, one is not thinking about this when stopped, and one almost always answers the questions, hoping that an officer will not notice or will let him go (but that only happens in the movies). This right to silence exists even before one is arrested and given the well known Miranda rights (which most importantly explain that if you say anything, it will be used to convict you at a trial). When one invokes her right to counsel, it extends to any formal questioning from that point forward regardless if you have not yet been arrested (e.g. I don’t want to answer any questions until my attorney, Marco Caviglia, is next to me telling me it’s o.k. to answer, so please don’t ask me any more questions.  I want my attorney at this time.)

One has a right to demand a lawyer at any time, even if not arrested yet. At that point, the police should not question the driver without an attorney present if she has asked for one, even if she cannot afford a lawyer or hasn’t given any lawyer’s name.  The driver may insist on one before answering any potentially incriminating questions.  In addition, the driver cannot be forced to take the field sobriety tests. One may decline.

If advised that he has committed a moving traffic infraction (e.g. going over the yellow line) or been involved in an accident, he may be requested to take the hand-held alcosensor test,and if he refuses, he may be ticketed for that particular refusal. But this is only a violation, not a crime, and that’s a lot less serious than DWI.

If one does not take the chemical breathalyzer test at the police station, that will result in the revocation of his license subject to a DMV hearing, as mentioned earlier. Also, the refusal can be used as evidence of consciousness of guilt at the trial.  A telephone call to an attorney if one is contemplating a refusal of the testing is helpful.

As one may deduce, exercising one’’s rights at the time of the stop, arrest and testing are one’’s only means available of affecting the evidence that will be subsequently used against the driver at his later prosecution.

You don’t have to help the police convict you!

A motorist does not have to submit to any field sobriety test.  She does have to take the hand-held alco-sensor test if she was stopped for a moving violation, and if refuses, gets a ticket.  But that is not the chemical (breathalyzer test).  In fact the only thing one has to do is, if arrested, to take the chemical test at the station.

An officer is never supposed to threaten a citizen for exercising his rights, nor attempt to dissuade him from invoking his rights. However, on occasion a driver may feel intimidated by the officer, and be afraid to exercise her rights. For example, if the officer suggests that refusal to take the chemical breath test will result in the officer’s recommending to the judge that bail be set at the arraignment, so that the driver will have to go to jail (at least overnight), such conduct is improper. There are other ways one can be intimidated. Some examples are by the use of or threat of unnecessary or excessive force, excessively tight handcuffs (take pictures of the marks/bruises left), or refusal to allow the driver to use a bathroom unless he agrees to take the test. This is not an exhaustive list. There is not much one can do at the time except to remember the details and names of the officers. Such conduct can have remedial consequences upon the case, and the driver should remember to tell his attorney about them.

Another protection is the right to telephone an attorney. One should exercise this right. Don’t just ask for a telephone call, ask for the telephone to call your attorney.  If an attorney is contacted, he or she can protect the driver and his rights much better than if none is contacted (e.g “My lawyer is Marco Caviglia and his telephone number is 471-0044.  I want to speak to him before I do anything or say anything). It is wise to have the number and name of one’s attorney at all times, especially if the attorney is available after hours. Telephoning a relative is only effective if that relative will contact the attorney for you while you are in custody, and ask the attorney to intercede immediately. The relative has more chance of reaching someone through multiple telephone calls, a luxury the driver does not have while in custody.


Once arrested, does the driver, now a defendant, need an attorney? Once arraigned at his first appearance, his license is usually suspended pending prosecution, and the matter is scheduled for motion practice. After written motions by the defendant and written answer by the prosecutor, the judge issues a decision which may include ordering that pre-trial hearings be held to determine certain legal issues which may include the propriety of the officer’’s stop of the vehicle and the admissibility of the defendant’’s statements made to the police. If the prosecutor’’s case is still legally sufficient following the hearings, the matter proceeds to trial (to understand the criminal procedure in more detail, you may proceed later to that article).

At a trial, the defendant may be found guilty or not guilty. Sometimes a “plea bargain” is obtained before or during trial in which the district attorney and the defendant’s attorney fashion an agreement which is mutually acceptable to the defendant and the State of New York.  If convicted, the defendant is sentenced and his license is further suspended or revoked in addition to other aspects of the sentence.


A DWI case is a criminal case, even if there was no accident, no one was hurt, and matters were relatively uneventful. The outcome may affect your liberty, license, reputation, job, and finances…not to mention your ability to be insured as a driver and the rates you will pay, and what modifications you will have to make to your automobile just to drive conditionally. Lots of normal people, not thought of as criminals, get arrested for DWI and are not experienced in such matters. An experienced criminal law attorney is a necessity.

The reasons for this are several. Only an experienced criminal law attorney (I have almost 40 years in criminal law) will be able to analyze the case sufficiently to know if, and in what way, the charge can be challenged. An unrealistic challenge will be expensive and may result in a worse disposition than a plea bargain. On the other hand, a case that should have been challenged, but was not, will result in a conviction which should not have occurred. This analysis starts at our first conference with the client, but often will only be decided some later time into the case itself.

It must be recognized that DWI cases are, in reality, complicated. They involve technical and scientific devices, analysis of key facts in the stop, questioning, and arrest of the defendant, knowledge of criminal procedure and rules of evidence, and may involve a pre-trial hearing and possibly a trial.  Trial experience is also relevant because the attorney must have solid experience in knowing how things in your particular fact pattern and evidence will affect a jury and how to manuver evidence during the trial.

It is often only an experienced criminal law attorney who can assist the client in overcoming his embarrassment at being arrested and seeking out potential and not so obvious defenses in a DWI case. Aside from dismissal or acquittal, weaknesses identified in the prosecutor’’s case may result in a better disposition by plea bargain than originally offered by the prosecutor.

These considerations are magnified if this is not one’’s first offense. A repeat offender with a prior DWI conviction is subject to conviction of a felony and loss of certain rights as an American citizen, prison or jail, being placed on probation for years, a $10,000 fine, and loss of license for years or permanently. Even if a felony conviction is avoided, harsher consequences will still follow for a lesser conviction if it is not the first.

With all of this in mind, choose an attorney with significant experience in criminal law and DWI cases.  I have handled thousands of DWI cases over almost four decades and know what I am doing.  Call .. I can help.