DWI

By Joe Carbonaro, Attorney at Law

If you have just been arrested for DWI you have no doubt entered territory which is totally unfamiliar to you. Most people arrested for DWI, drunk driving have no criminal records and are, by and large, law abiding, responsible and decent. In other words, they are not typical “criminals.”

Most people who find themselves accused of a crime for the first time are filled with anxiety and fear over the potential consequences. If you fall into this category, you are not alone and you should keep reading. While your concerns feel real, many are no doubt exaggerated.

New York, like many states, criminalizes driving while intoxicated as a misdemeanor offence. The range of possible punishment starts with a fine and goes as high as one year in prison. Of course, most first offenders do not receive prison sentences for the average DWI case, though this is a real concern for repeat DWI offenders.

The reality of most DWI cases (and most misdemeanor criminal cases in general) is that people end up pleading guilty to avoid a long, costly and risky trial. It is not to say that all such cases end up in guilty pleas, but about 95% do. Ultimately, there is a choice to be made by the client with the advice of counsel: whether it makes rational sense to proceed with a trial. This decision must be based upon a reasoned evaluation of the evidence with the guidance of a seasoned criminal trial lawyer who is well versed in the highly specialized area of DWI. Assuming there is no trial, there are certain common facts about DWI cases that you should know.

First, it is important to remember that there are two categories of DWI offences: driving while intoxicated and driving while impaired. There is a very important difference between these two classifications of DWI cases. Driving while intoxicated is a crime; it gives you a criminal record. Driving while impaired by alcohol is not a crime, but is classified as a traffic infraction, similar to speeding. Technically, this category of offence does not give you a criminal record.

The penalties for driving while impaired are also less severe. While a conviction for driving while intoxicated requires a mandatory six month license revocation, (or, if your license is from another state, a corresponding suspension of your privilege to drive in New York State) impaired driving requires only a ninety day suspension of your driver’s license or privilege to drive in New York. A mandatory drinker/driver program is also part of any sentence. The drinker/driver program for intoxicated driving can be more involved, requiring attendance at many sessions while the drinker/driver program typically required for impaired driving is less involved requiring attendance at only a few sessions. The fines are also somewhat lower for impaired driving.

The most frequently asked question is whether a DWI “suspect” should blow into the breath test machine or breathalyzer. While there is no hard and fast rule, it is usually best not to blow into the breathalyzer. Unless you know you have had no alcohol or very, very little alcohol, you are allowing the police to easily establish your guilt by submitting to the test. Keep in mind that it is not a defense to show that even though you blew over a .08% on the test you still weren’t “intoxicated” in the typical sense. The law mandates that if drive and blow over .08%, that is a crime regardless of whether you think you are intoxicated. You should be mindful that any refusal to submit to a breath test or other such test can result in a separate six month revocation of your license or privilege to drive. This is true even if the criminal charges against you are dismissed. On balance, it is nonetheless my belief that a person is still better off refusing to submit to the breath test.

All in all, it is most important to remember the first rule of DWI: just don’t do it. However, ff you do find yourself in this situation, you might help yourself by remembering these guidelines. And always call your lawyer at the first opportunity you are given and exercise your right to remain silent. That isn’t just in the movies.