DWI Law

Simon & Milner recognizes the special expertise that is necessary to handle a DWI case as well as the fact that a DWI prosecution is different in that in addition to criminal penalties, a DWI conviction can also subject you to substantial civil penalties.

Simon & Milner is also well aware of the current climate regarding DWI in New York State. DWI is now taken more seriously than ever before. Defendants charged with DWI are often treated more severely than those charged with offenses of a much higher degree.

Very often, depending on where you have been charged, it might be next to impossible obtaining a favorable plea result. You may be forced to choose between going to trial or accepting a resolution with very stiff penalties.

You need an attorney who understands the complexities of taking a DWI case to trial and win! If necessary, Simon & Milner will challenge the validity of every piece of evidence against you. We will challenge the results of a breathalyzer. Our attorneys understand that these machines are not perfect.

We will work to expose the flaws of such equipment in order to prove your innocence. We will challenge blood evidence. We will challenge how blood may have been drawn. We will challenge the officer's expertise in administering sobriety tests.

There are six sections of DWI law under which you can be charged:

PER SE DRIVING WHILE INTOXICATED (BAC > .08): This is by far the most common charge. In order to be guilty of this offense, the prosecution only needs to prove that you had a BAC of at least .08. 

DRIVING WHILE INTOXICATED (DWI): Under this section, the prosecution must demonstrate that you were in fact intoxicated while driving an automobile. Very often, the police will charge you under the Per Se DWI law as well as this law so that the prosecution has two theories under which they can try to convict you.

The prosecution will use evidence of failed sobriety tests as well as the police officer's observations of you at the scene and any statements you have made in order to try and prove their case against you.

AGGRAVATED DRIVING WHILE INTOXICATED (DWI): This is the exact same charge as DWI, except that the prosecution must prove that your BAC was at least .18. A conviction of aggravated DWI is still a misdemeanor, however the license penalties and fines are greater. 

Furthermore, a charge of aggravated DWI makes it less likely that the prosecution will be willing to offer a favorable plea bargain.

DWI WITH A CHILD PASSENGER (LEANDRA'S LAW): This is the newest section of the DWI law. If you are charged with DWI, but have a passenger in your vehicle who is under the age of sixteen, you will be charged under Leandra's Law. 

DRIVING WHILE IMPAIRED BY DRUGS: This is almost the exact same charge as DWI except it is used when you are not drunk, but under the influence of drugs. The fact that you were taking a legally prescribed drug is not a defense!!! 

This means that if you are on a drug that impairs your ability to drive and a police officer feels you are impaired, they will arrest you, even though you had every right to be taking that particular drug. Unfortunately, many law-abiding citizens are arrested on this charge every day. 

DRIVING WHILE ABILITY IMPAIRED BY ALCOHOL (DWAI): This charge is the most minor of the four. In fact, it is only considered a traffic infraction and not a crime. However, unlike most traffic infractions, conviction of DWAI will still result in license suspension and higher insurance premiums. 

If you BAC is over .05 and an officer believes your ability to operate a motor vehicle is “impaired” you will be arrested for DWAI. In addition, you can be charged as “per se” DWAI if you BAC is at least .07.

Otherwise, the police need a valid reason to stop you such as the commission of a traffic violation or if they believe you are acting suspicious and are able to give an articulable reason for their suspicion (they can't just say you looked suspicious, but they can say you were driving slowly past a row of stores late at night that had been the recent victim of burglary).

In fact, if the police stop you without a valid reason, an experienced defense attorney at Simon & Milner may be able to have the entire arrest deemed invalid and all the evidence against you thrown out resulting in a full dismissal of the charges!

However, one thing you should be aware of is that the police can and do sit outside of bars and other locations where people frequently drink alcohol. When people leave, they will watch you get into your car and follow you, waiting for you to do anything wrong (go over a pavement marking, brake light out, etc.). 

Once you do, they will have probable cause to pull you over, and if you are intoxicated, you will be arrested.

Unless you are with someone who may legally drive, your car will be impounded at the time you are arrested for DWI. The police should have given you a property receipt with which you can pick up your car at a later time. 

Be prepared to pay both towing and storage charges for your vehicle when you pick it up. However, there is also the possibility that your car could be seized.

Field sobriety tests are the various “tests” that an officer may ask you to participate in so as to determine if your ability to operate a motor vehicle is impaired. 

These tests may include walking “heel-to-toe” in a straight line, reciting the alphabet, horizontal gaze nystagmus test (they shine a light in your eyes and you are supposed to follow the officer's finger), standing on one foot, and other similar tests.

In addition to this, the officer may ask you to take a field breath test. This is NOT a breathalyzer. It's similar to one, but it is much less accurate than the one you will be asked to take at the police station.

Breathalyzer

By far, the most common of these tests is the Breathalyzer. This is NOT the device the police have you blow into on the road side. The device utilized on the roadside can be highly inaccurate and is only used to assist the officer in determining if you might be intoxicated.

After the police arrest you and bring you to the station, they will ask you to take a breathalyzer. This is usually a somewhat larger machine that may appear computerized. A person operating such a machine must be certified and trained in proper use of this machine.

The way it works is you blow as hard as you can into a tube which is connected into the machine and it measures the amount of alcohol in your lungs. It uses the alcohol in your lungs to calculate your estimated BAC. If the reading is at least .08, you will be arrested and charged with DWI.

Blood/Chemical Tests

Blood tests may also be used when you are suspected of DWI. A police officer MAY NOT take your blood, only a trained medical technician can take your blood. Blood tests are used less frequently as they are more invasive and expensive. 

However, the police will use them if necessary (such as if the suspected drunk driver is unconscious or if a person was killed or seriously injured in an accident, blood will be taken as well as a breath sample for verification purposes).

Blood tests are also used if the police suspect you are under the influence of drugs as obviously a breathalyzer will not be able to determine if you are under the influence of a drug besides alcohol.

Urine

The police may also screen your urine to determine if you are under the influence of drugs or alcohol. This is the least used method of the three, but it is possible that such a test could be requested of you.

Forfeiture

New York State law allows the government to seize any property that was used in the commission of a crime. Unfortunately, our local governments are now using this section of law to take vehicles away from otherwise law-abiding citizens who have been charged with DWI.

On Long Island, and particularly in Nassau County, it is likely that a forfeiture proceeding will be initiated even if it is your first DWI offense. In NYC, it is much less likely to occur on a first offense. 

However, if this is your second offense or worse, it is very likely that a forfeiture proceeding will be initiated against you regardless of where you have been arrested.

If the car you were driving was not yours, that person may be able to get the car back but they will probably need to attend a hearing. It is important to note that this is a separate proceeding. 

NO! Never! There is no benefit to taking these tests. Just because you pass the test does not mean you won’t still be arrested and charged with DWI. And, worse yet, you could fail the test even if you haven’t had anything to drink (maybe you just aren’t very nimble). 

Either way, you have just provided evidence for the prosecutor to use against you at a potential trial. Note that field sobriety tests DO NOT include chemical tests (breath, blood, urine) which are discussed in the subsequent section, but they DO INCLUDE the hand-held breath test administered by a police officer at the scene.

Even if you refuse the entire field sobriety tests (including breath test), this refusal only amounts to a traffic violation for which you would be sentenced to a fine and two points on your driver's license. 

If the police still suspect you were driving while intoxicated, you will still be arrested and asked to take chemical tests, but your refusal to take the field tests will substantially limit the potential evidence the prosecutor has against you.

Should I take chemical/blood/breath/urine tests?

This is a VERY tricky question. There is no simple answer here. As explained here, there are certain severe consequences for refusing to take a breath/blood test including an automatic one-year revocation of your driver's license (even if you are later found not guilty of DWI). 

However, it may also be to your advantage to refuse such a test. Obviously, if you do take the test, the results will be admitted against you as evidence at a potential trial. 

If you take a breathalyzer and your BAC reading is .12, it is much easier for the district attorney to prove you are guilty of “per se” DWI as all they have to prove is that your BAC is at least .08 and you were operating the vehicle.

If you don't take the test, although there will be no results to use against you, the prosecutor will admit evidence of your refusal to take the test and a jury is permitted to make a “negative inference” regarding your refusal to take such a test.

Clearly, the prosecutor will have a much tougher time ultimately proving the charges against you without chemical evidence of some kind to prove intoxication. 

The prosecutor will instead have to rely only on the officer's observations of you at the scene and any statements you might have made in order to prove their case against you.

Although your license will be revoked for one year if you refuse the tests, if you are convicted of DWI, your license will be revoked for at least six months anyway. 

Furthermore, a conviction of DWI gives you a criminal record and subjects you to additional penalties and requirements. A refusal to take a chemical test only subjects you to DMV penalties.

Of course, you must also keep in mind that you could have your license revoked for refusing the tests and then still be convicted of DWI anyway. 

However, strangely enough, if that did happen, your one-year revocation for the refusal would be REDUCED to six months so that the refusal revocation would end when your revocation for the DWI conviction ended.

You need to keep in mind, however, that if your license is revoked for refusing to take a chemical test, you will NOT BE ELIGIBLE for a conditional license unless and until you plead guilty to DWI. 

This means that you will be completely unable to drive a car for a period of 12 months unless you plead guilty to the criminal charges against you. Yes, this is essentially legal blackmail.

Of course, many times you might be facing more than basic DWI charges, perhaps this is a 2nd offense or worse, perhaps someone was killed or injured in a crash, maybe a child was in the car. All of these circumstances would qualify for a felony charge of DWI. 

In such a case, you are probably always better off accepting the loss of your license in exchange for making the district attorney's job much harder.

If you take the test, the results will still be used against you. However, if more than two hours have passed since you were arrested and you refuse a chemical test, there is no penalty to you because you are only required to take the chemical test within two hours of your arrest.

Another consideration to keep in mind is that some jurisdictions treat you more harshly if you have refused the test. For instance, in Suffolk County, if you have refused a test, the prosecutor will not allow you to plead guilty to a reduced charge under any circumstances. 

You must plead guilty as charged and WILL be sentenced to AT LEAST three years probation, or you go to trial (at least knowing that there is no chemical evidence that will be used against you).

In Nassau County, however, the district attorney rarely allows you to plead to a reduced charge under any circumstances. Nassau County has become so strict on DWI that very often you are forced to choose between just pleading guilty and going to trial. 

Obviously, in such a case, unless you want to plead guilty since it is to your benefit to have refused all the chemical tests.

In NYC and other surrounding areas, the treatment of those who have refused chemical tests from those simply charged with DWI varies widely. As you can see, there really is no answer to this question. It is up to you whether or not you should take the test based on your own individual circumstances.

There are certainly pluses and minuses to both options. Whatever you do, do not take some of the tests and refuse others, you will be charged with a refusal AND the prosecutor will still have some evidence to use against you. Some key points to keep in mind however:

1.) If you take the test, the results of that test will be admitted as evidence against you at any potential trial.

2.) DO NOT take a chemical test if more than two hours have passed since you were arrested (meaning handcuffs applied). (After two hours, you are no longer under an obligation to consent - watch that clock!!!)

3.) If you refuse (and less than two hours have passed since you were arrested), your license will be suspended immediately and a hearing will be held within 15 days to determine if your license should be revoked for one year.

4.) If you refuse, you will NOT be eligible for a conditional license unless you subsequently plead guilty to DWI.

5.) If you refuse, it may impact negatively on your ability to negotiate a favorable plea bargain with the district attorney.

6.) If you refuse, the fact that you refused will be used against you at trial.

7.) If you take the test, and your BAC is .08 or higher, your license will probably be automatically suspended “pending prosecution” and this will be in addition to any suspension you may get as a result of a DWI plea or conviction.

What is going to happen to my license after a DWI arrest?

New York State allows for the suspension of your driver's license “pending prosecution.” This means that on your first court appearance following your arrest for DWI, there is a high likelihood that the judge will immediately suspend your license pending prosecution. 

If there is a chemical test reading, it is basically a certainty that your license will be suspended. Without a reading, whether or not your license will be suspended varies from jurisdiction to jurisdiction.

What is worse, however, is that this suspension does not count toward any license suspension you may be sentenced to as part of a subsequent plea bargain. 

Essentially, if your case takes five months to resolve and you then take a plea bargain in which you receive a six-month license suspension, your license will be suspended for six months in addition to the five months that it has already been suspended.

After your license has been suspended for 30 days pending prosecution, you then become eligible to apply for a conditional license so that you may drive to and from work, school and medical appointments. However, for those first 30 days, you may not drive at all.

Is there a hardship exception? What if I need to drive within 30 days?

Yes, there is a hardship exception. In order to receive a hardship exemption, you need to win a hardship hearing. A hearing such as this is very difficult and should not be taken lightly. You need an experienced attorney from Simon & Milner who can help navigate you through this hearing.

We will need to demonstrate to the judge that you need your license for your job or for medical reasons and that there are no reasonable alternatives to driving.

Obviously, this means that absent some sort of medical condition, if you live in NYC, odds are you will not meet the criteria for a hardship exemption as NYC has such comprehensive public transportation.

An experienced attorney from Simon & Milner will be able to review the specific facts of your case with you and determine if you should pursue a hardship exemption to receive a conditional driver's license immediately upon suspension pending prosecution.

DMV Refusal hearings

If you refuse a chemical test, your license will be immediately suspended. However, the DMV will be required to hold a hearing within fifteen days of this suspension to determine if you did in fact refuse the chemical test. 

You will be given paperwork from the DMV after your initial arrest informing you of the suspension as well as the date of your hearing. Many people just mail the form back and admit that they refused the test. DO NOT DO THIS!!!

You will hear that DMV refusal hearings are next to impossible to win and they are simply a waste of time. While that may be true, any attorney who tells you not to attend the DMV refusal hearing is clearly not an experienced DWI practitioner.

The fact is, while it is VERY EASY to establish the refusal and there is a high likelihood you will lose, Simon & Milner has won DMV refusal hearings. An experienced attorney can accomplish this feat!

The advantages of winning are so high, they far outweigh the hour or two you will need to spend at the hearing. If you win, not only will your license be handed back to you on the spot, the prosecutor will still not have any chemical evidence to use against you at trial.

Just as important, regardless of the outcome, your experienced defense attorney from Simon & Milner will have a chance to cross-examine the arresting police officer at this hearing. It is very rare in criminal defense law to get an opportunity to cross-examine the police officer prior to trial.

For a defense attorney, this is a very valuable tool. It will allow an experienced attorney to find out many extra facts and details from the police officer that without the hearing you would not hear about until the time of trial. 

Essentially, even if you lose the hearing, you get free information that will be very valuable to your attorney if you do eventually proceed to trial.

Penalties for alcohol-related and drug-related violations:

Violation: Aggravated Driving While Intoxicated (A-DWI)

Mandatory Fine: $1,000 - $2,500

Maximum Jail Term: One year

Mandatory Driver License Action: Revoked for at least one year

Violation: Second A-DWI in 10 years (E felony)

Mandatory Fine: $1,000 - $5,000

Maximum Jail Term: Four years

Mandatory Driver License Action: Revoked for at least 18-months

Violation: Third A-DWI in 10 years (D felony)

Mandatory Fine: $2,000 - $10,000

Maximum Jail Term: Seven years

Mandatory Driver License Action: Revoked for at least 18-months

Violation: Driving While Intoxicated (DWI) or Driving While Impaired by a Drug (DWAI-Drug)

Mandatory Fine: $500 - $1,000

Maximum Jail Term: One year 

Mandatory Driver License Action: DWI-Revoked for at least six months, DWAI-Drugs - Suspended for at least six months

Violation: Second DWI/DWAI-Drug violation in 10 years (E felony)

Mandatory Fine: $1,000 - $5,000

Maximum Jail Term: Four years

Mandatory Driver License Action: Revoked for at least one year

Violation: Third DWI/DWAI-Drug violation in 10 years (D felony)

Mandatory Fine: $2,000 - $10,000

Maximum Jail Term: Seven years

Mandatory Driver License Action: Revoked for at least one year

Violation: Driving While Ability Impaired by a Combination of Alcohol/Drugs (DWAI-Combination)

Mandatory Fine: $500 - $1,000

Maximum Jail Term: One year

Mandatory Driver License Action: Revoked for at least six months

Violation: Second DWAI/Combination in 10 years (E felony)

Mandatory Fine: $1,000 - $5,000

Maximum Jail Term: Four years

Mandatory Driver License Action: Revoked for at least one year/18 months

Violation: Third DWAI/Combination in 10 years (D felony)

Mandatory Fine: $2,000 - $10,000

Maximum Jail Term: Seven years

Mandatory Driver License Action: Revoked for at least one year/18 months

Violation: Driving While Ability Impaired by Alcohol (DWAI) 

Mandatory Fine: $300 - $500

Maximum Jail Term: 15 days

Mandatory Driver License Action: Suspended for 90 days

Violation: Second DWAI violation in 5 years

Mandatory Fine: $500 - $750

Maximum Jail Term: 30 days

Mandatory Driver License Action: Revoked for at least six months

Violation: Zero Tolerance Law

Mandatory Fine: $125 civil penalty and $100 fee to terminate suspension

Maximum Jail Term: None

Mandatory Driver License Action: Suspended for six months

Violation: Second Zero Tolerance Law

Mandatory Fine: $125 civil penalty and $100 re-application fee

Maximum Jail Term: None

Mandatory Driver License Action: Revoked for one year or until age 21

Violation: Chemical Test Refusal 

Mandatory Fine: $500 civil penalty ($550 for commercial drivers) 

Maximum Jail Term: None 

Mandatory Driver License Action: Revoked for at least one year, 18 months for commercial drivers.

Violation: Chemical Test Refusal within five years of a previous DWI-related charge/Chemical Test Refusal 

Mandatory Fine: $750 civil penalty 

Maximum Jail Term: None 

Mandatory Driver License Action: Revoked for at least 18 months, one-year or until age 21 for drivers under age 21, permanent CDL revocation for commercial drivers.

Violation: Chemical Test Refusal - Zero Tolerance Law

Mandatory Fine: $300 civil penalty and $50 re-application fee

Maximum Jail Term: None 

Mandatory Driver License Action: Revoked for at least one year.

Violation: Chemical Test Refusal - Second or subsequent Zero Tolerance Law

Mandatory Fine: $750 civil penalty and $50 re-application fee 

Maximum Jail Term: None 

Mandatory Driver License Action: Revoked for at least one year.

Violation: Driving Under the Influence - (Out-of-State) 

Mandatory Fine: N/A

Maximum Jail Term: N/A

Mandatory Driver License Action: Suspended for 6 months. If less than 21 years of age, revoked at least one year.

Violation: Driving Under the Influence - (Out-of State) with any previous alcohol-drug violation 

Mandatory Fine: N/A

Maximum Jail Term: N/A

Mandatory Driver License Action: Suspended for six months. If less than 21 years of age, revoked at least one year or until age 21 (longest term).

Unfortunately, DWI offenders are currently being treated VERY harshly. As a result, although plea “bargains” may be available, they will not necessarily be particularly favorable to you.

For instance, in Nassau County, with almost no exception, if you have been charged with DWI, the only plea “bargain” offered will be to plead guilty as charged. Very often, even on a plea “bargain” the district attorney will at least initially be seeking a few days in jail PLUS three years on probation. 

If you had a particularly high BAC reading or if this is not your first offense, the prosecutor might be seeking 30 days or even more in jail PLUS three years on probation.

In other counties, depending on your individual circumstances, you may be able to receive a plea “bargain” in which you are permitted to plead guilty to DWAI instead of DWI. You will still lose your license and pay a lot of fines, but you will avoid a criminal record, potential jail time, and a probation officer. 

In other situations outside of Nassau County, the best plea “bargain” may still be to plead guilty as charged to DWI but without the additional jail and probation requirements. However, you will still be stuck with a criminal record.

You need an experienced criminal defense attorney to review your case. Only an experienced attorney can recognize flaws in the prosecution's evidence. An experienced defense attorney will know what motions to file and what hearings to request. 

An experienced defense attorney will use every weakness in the prosecution's case so as to maximize your leverage and get you the best possible plea bargain out there.

Ultimately, however, if a plea “bargain” involving a criminal record is not going to be satisfactory to you, be prepared for a long, drawn-out battle with the district attorney's office. This is a battle that can only be won by an experienced criminal defense attorney.

New York State law allows the government to seize any property that was used in the commission of a crime. Unfortunately, our local governments are now using this section of the law to take vehicles away from otherwise law-abiding citizens who have been charged with DWI.

On Long Island, and particularly in Nassau County, it is likely that a forfeiture proceeding will be initiated even if it is your first DWI offense. In NYC, it is much less likely to occur on a first offense. 

However, if this is your second offense or worse, it is very likely that a forfeiture proceeding will be initiated against you regardless of where you have been arrested.

If the car you were driving was not yours, that person may be able to get the car back, but they will probably need to attend a hearing. It is important to note that this is a separate proceeding.

You may get your car back only to have a process server hand you papers a couple of weeks later in which you will discover that you are now the defendant in a civil lawsuit started by the county in which you were arrested seeking to have you forfeit your vehicle as an “instrument of a crime.” 

DO NOT IGNORE THESE PAPERS!!! IF YOU DO, YOUR CAR WILL BE TAKEN!!! GIVE THESE PAPERS TO AN EXPERIENCED LAWYER AT SIMON & MILNER IMMEDIATELY. We can help you fight this forfeiture proceeding and keep your car!!!

There is no simple answer to this question. As experienced DWI defense attorneys, Simon & Milner understands that each DWI case is different from the next. There are different sets of facts, different types of evidence, and different defendants. It all must be taken into account.

Simon & Milner will sit down with you in our office and go through every detail of what occurred from the time you got in your car to the time you were brought before a judge. We will carefully review all the evidence that the prosecutor intends to use against you.

After the review, we will speak to you and give you our opinion on how strong a case we believe the district attorney has, whether or not we think you would be best served to work out a deal, or whether or not we believe you should put up a strong fight to the charge.

The attorneys of Simon & Milner in Valley Stream, NY are here to help if you have been involved in with a DWI. Call 516-561-6622 or 800-807-5616.