Frequently Asked Questions
- If charged with a DWI, will I be able to keep my license?
- How does a DWI affect my job?
- What is a conditional license?
- What is a hardship license?
- Is a DWI a crime?
- If charged with a DWI, am I going to jail?
- Can you beat a DWI charge?
- How long will a DWI stay on my record?
- What is a DWI?
- What is an Aggravated DWI?
- What is a DWAI?
- What should I do if I am stopped?
- What do I do after the officer directs me to pull over?
- What’s next?
- When asked, should I be truthful about how much I’ve had to drink?
- Do I have to answer the officer’s questions?
- Will I have to take field sobriety tests?
- If they arrest me and take me back to the police station, what should I do?
- What happens if I refuse my chemical test?
- Can I receive a plea offer to a lesser offense?
- I’ve been a law-abiding citizen and a taxpayer for my entire life. Why can’t they give me a break?
1) If charged with a DWI, will I be able to keep my license?
Whether you can keep your driver’s license or not depends on the circumstances of your DWI. For a first DWI conviction, your license can be revoked for at least 6 months, for a second conviction and third conviction for at least a year. If you are charged with a DWI, your license may be suspended pending prosecution. If a law enforcement official requested that you take a chemical test, and you refused to submit to the test, your driver’s license can be suspended for one year. You have the legal right to seek a hardship license that would permit you to drive to and from work, school or certain activities. If you are under the age of 21 and are charged with a DWI, there is an automatic license suspension for one year. (See question 3) and question 4) on conditional and hardship licenses.)
2) How does a DWI affect my job?
This is an important question to answer before taking a plea and may vary from job to job. Furthermore, if convicted of a DWI, you would be convicted of a crime and have a criminal record. Jobs that require a professional license or background checks may be affected if convicted of a crime. This problem may be overcome with a certificate against disability, which your attorney can apply for. Additionally, any conviction may include a jail sentence. If you are pleading, your attorney should try to get the sentence commuted, but this is not always possible. If your case is going to trial, your attorney should try to find out what possible sentence the judge is considering if you lose. Many times a sentence is more lenient if a plea is worked out rather than going to trial.
3) What is a conditional license?
According to the DMV, “If you are convicted of an alcohol or drug related driving violation, your license or privilege to drive in New York State will be revoked or suspended. However, you maybe eligible for a conditional license or a conditional driving privilege if you participate in New York State’s Drinking Driver Program (DDP).
If you qualify for a conditional license or conditional driving privilege, you will be allowed to legally drive within certain limitations. A conditional license is not valid for driving a vehicle that requires the operator to hold a commercial (CDL) driver license. To receive a conditional license or conditional driving privilege, you must participate in the DDP.” 1
If you had the opportunity to participate in the DDP within 5 years of your current arrest, you will not be eligible for a conditional license.
4) What is a hardship license?
A hardship license may be granted by a judge on the day that your license is suspended based on evidence of your inability to find alternate transportation to work, school or certain other activities, such as doctor’s appointments and so on. Similar to a conditional license, a hardship license is very restrictive and only allows driving to and from work, school and other designated activities.
Yes, a DWI is a crime and is prosecuted in the criminal justice system. Depending on the circumstances, a DWI may be a misdemeanor or a felony. Although a conviction of impairment due to alcohol is usually not considered a crime and is only a violation and usually does not create a criminal record.
6) If charged with a DWI, am I going to jail?
Being charged with a DWI does not automatically equate to a jail sentence. Sentencing for jail depends on the circumstances, whether the DWI is a first offense misdemeanor or a repeated offense as well as whether anyone was injured or killed as a result of your DWI. There are alternatives to jail such as drug rehabilitation programs, probation, drug court or a conditional discharge. Also, violations of your rights, such as improper stop or BAC tests that did not meet regulated standards, may result in reduced or dismissed charges.
The answer is yes, but it depends on the facts and circumstances surrounding your DWI. If the police made errors in handling your arrest, or if the D.A. mishandled the prosecution of the case, you may beat a DWI. It is not uncommon to plea a DWI case if a favorable sentence can be reduced. Outright dismissal of all charges is not common, but does happen.
8 ) How long will a DWI stay on my record?
If you are convicted of a DWI, it will stay as a criminal record permanently. It should be noted that a prior DWI will usually only have negative statutory effects for 10 years, but courts can and usually do take into account any prior conviction when sentencing, no matter how old. This is because New York State, unlike some other states, generally does not allow expungements or clearing of criminal records. If you are 18 years old or younger, your record could be sealed if you are found to be a youthful offender. While a DWI conviction results in a criminal record, a DWAI does not. Our attorneys thoroughly review all legal avenues and, if possible, strive to negotiate for lesser charges or dismissal in DWI cases.
Driving While Intoxicated is a misdemeanor in New York State. A conviction leaves a person with a criminal record. In addition, for first time offenders, there will be a fine between $500-$1000, and a license revocation for up to 6 months. (See DWI Statutes § 1192-2 and § 1192-3.)
10) What is an Aggravated DWI?
Aggravated Driving While Intoxicated is a first offense misdemeanor in New York State for a driver operating a vehicle at a .18 BAC or higher. For a first time offender, the crime is punishable by a fine between $1,000-$2,500, or a jail term of up to one year or both, or up to 3 or 5 years probation or any combination of all three penalties. (See DWI Statutes § 1192-2a.)
Driving While Ability Impaired through use of alcohol is not a misdemeanor; it is only a traffic violation. Although a very tough traffic violation, this is not a crime. Evidence of alcohol impairment includes a BAC of .05 to .07 or other indications of impairment and carries a fine of $300 and a maximum sentence of 15 days in jail. Your driver’s license may be suspended or revoked for at least 3 months. (See DWI statute § 1192-1.) Driving While Ability Impaired through use of drugs, however, is a misdemeanor.
12) What should I do if I am stopped?
You should stay calm and try to think rationally. The police are doing their job and do not generally have anything against you personally. If you are arrested for DWI, this may just reflect the officer’s opinion. Be polite, and do not fight or confront the officer. If you have any questions about how to proceed, ask if you can speak to an attorney. You have a right to speak to an attorney.
13) What do I do after the officer directs me to pull over?
In a controlled fashion, use your turn signal to indicate that you are pulling over to a safe location off the road. Then, locate your license and registration, as the officer will generally ask for them. Turn off your radio and turn off your engine. Maintaining control and obliging the officer’s requests will generally be an indicator of sobriety, and not intoxication, although taking the breath test always has to be determined on a case-by-case basis. (See question #19 regarding refusal to take the chemical test.)
Ask the officer why you are being stopped. The law requires “probable cause” for the officer to seize your person. Without probable cause, the officer may be violating your constitutional right against unreasonable seizure, and any evidence he gains from this seizure may be ruled inadmissible at trial and could cause the case to be dismissed.
15) When asked, should I be truthful about how much I’ve had to drink?
I can never recommend that someone lie, but you should know everything you say might be used against you later. If you have had many drinks over a short period of time, and you admit to this, this may increase the likelihood that you will be arrested for DWI. If you have had only a couple of drinks over several hours, you may want to convey that to the officer as the metabolism of most adults will process alcohol at a rate fast enough to indicate sobriety. Again, there is no single answer for all situations.
16) Do I have to answer the officer’s questions?
No, you don’t, but in my experience, any answer or refusal to answer should be done respectfully. Remember, the officer is evaluating how you say things as well as what you say. If an officer indicates that you are under arrest, you now have a right to speak to a lawyer before you answer questions. You should; however, be aware of New York’s implied consent law. Failure to comply with an officer’s request to submit to a breath or chemical test to determine your level of intoxication may result in your license being suspended for a year. (See question #19 regarding refusal to take the chemical test.)
17) Will I have to take field sobriety tests?
More than likely, the officer will ask you to perform field sobriety tests. The most common tests are the horizontal gaze nystagmous, the one-leg stand, the walk and turn and the alphabet test. If you feel as though you are able, take these tests and do the best you can. These tests are still debated as to their accuracy and validity. It is usually important to state any disability that may prevent you from taking a test (i.e. bad knee, back, feet, head cold, any surgery, head injury, low blood sugar, etc.)
18) If they arrest me and take me back to the police station, what should I do?
Be polite, and tell the officers that you don’t wish to make any statements without an attorney present. Ask to use the phone to call your attorney, or ask to use the phone book to consult with an attorney. Under the law, you must be given a reasonable amount of time to attempt to contact an attorney. Remember that in order to avoid being accused of refusing the Breathalyzer test under the implied consent law, you will have to take the test at some point to avoid a mandatory suspension of your license. Balance this reality with your perception of how much you’ve had to drink.
19) What happens if I refuse my chemical test?
“A driver who refuses to take a chemical test (normally a test of breath, blood or urine) can receive a driver license revocation of at least one year and must pay a $500 civil penalty ($550 for a driver of commercial vehicles) to apply for a new driver license. A driver who refuses a chemical test during the five years after a DWI-related charge will have their driver license revoked for at least 18 months and must pay a $750 civil penalty to apply for a new driver license.”1
1 New York State Department of Motor Vehicles website at http://www.nydmv.state.ny.us/dmvfaqs.htm#dwi
20) Can I receive a plea offer to a lesser offense?
It depends on many factors. We have negotiated many reduced pleas. Every case is different and should never be given a “cookie cutter” approach by the attorney.
21) I’ve been a law-abiding citizen and a taxpayer for my entire life. Why can’t they give me a break?
You may receive what you call a “break,” either through plea negotiations or trial. At this time, there are many groups that pressure lawmakers to pass laws, such as our new “Aggravated DWI” law, which enhances the penalties for accused drunken drivers, with a fine of up to $2500, and a license suspension of up to 18 months. Judges or a District Attorney may find themselves in the paper if they are perceived as lenient toward accused drunken drivers. DWIs are the proverbial “political hot potato.” Your best defense usually involves strong legal issues and/or positive evidence. Showing you are not drunk, who you are (lack of a criminal record, good job, family, etc.) and what you are doing to help yourself (counseling, going back to school, etc.) are always important factors that your attorney should bring out (if positive). Most judges and district attorneys usually try to give this some consideration.
1 The Drinking Driver Program at http://www.nydmv.state.ny.us/broch/c40.ht
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