Saratoga County Criminal Defense Lawyer Blog

We've been discussing some legal trials and administrative tribulations faced by our client - you'll remember that he'd allowed his vehicle to become intimate with a tree under circumstances the police found suspicious. Following a 'report of refusal' alleging that our client had refused to take a chemical test of his blood alcohol content, and an initial hearing at which the arresting officer didn't appear, our client was sent on his way. His license, which had been suspended, was reinstated, and everything was fine, license-wise.

But only for the moment. The man was still facing criminal charges, and even if the criminal action should end in a favorable disposition (it didn't) the administrative proceeding was bound to go on. In fact, a favorable disposition on the underlying charge would just increase the stakes at a refusal hearing. We are by no means the first to point out that if you win at trial, but lose a refusal hearing, you aren't eligible for any conditional or restricted license. So in practical terms, you may find yourself worse off than if you'd been convicted.

Our client didn't have that problem. As we mentioned last time, he ultimately made his peace with the authorities, and took his lumps, including a six-month license revocation (with a conditional license to get to and from work).

The decision our client had to make was whether to go ahead with the refusal hearing. He was of course already on a six-month revocation for DWI. If DMV found that he'd refused the chemical test, he was looking a year on top of that. However, a refusal revocation can run concurrently with a DWI revocation. This meant that if he were to withdraw his request for a hearing - in other words, admit a refusal - he would get credit for every day of the refusal revocation that overlapped with the DWI revocation.

Continue reading "DUI/DWI in New York and Refusal Hearings, Part 2" »

Our client really felt his long (if self-inflicted) ordeal should be over. After a six-month revocation for drunk driving, his full license had been restored (he'd limped along all those months on a conditional license that got him to and from work). The ignition interlock device he'd had to install - which essentially turned his car into a rolling breathalyzer - had been removed.

But the wheels of justice turn slowly, and if our client had forgotten this, he now got a reminder from the Department of Motor Vehicles. It came in the form of a notice scheduling, or rather rescheduling, an administrative hearing. The subject of the hearing? His alleged refusal to take a chemical test in connection with the DWI/DUI he'd already been punished for. If the hearing didn't go his way, he was facing a new, year-long revocation.

As we've discussed before, DMV's administrative proceedings can run parallel to any criminal action. And this makes sense, because technically they're very different things, particularly when it comes to DWI and refusal.

If you drive drunk, it's a public safety issue. You're endangering everyone else on the road. If you're found guilty of driving drunk, you'll have a criminal conviction; you're branded forever as someone who's been an enemy of society, and you'll carry all the baggage that goes with that. Almost as an afterthought, you also face potential jail time, fines and surcharges, along with mandatory license revocation and a $750 driver responsibility assessment.

If, on the other hand, you refuse a chemical test (of blood, breath or urine), you're just violating the terms of your driving privilege. So, you only face license sanctions and (heavy) financial assessments. (Although you should be warned that prosecutors can make you pay for a refusal in the criminal proceeding as well, by refusing to plead the charge down in the case of a refusal. This is notably the case in the Capital Region's Albany County.)

In our client's case, both the criminal and administrative proceedings started off with a bang when he wrapped his vehicle around a tree (after leaving the road and bumping many yards across an open field). He wound up spending hours in an emergency room with injuries to his head and torso, questioned intermittently by a police officer who hovered over the scene, "like a vulture."

Continue reading "DUI/DWI in New York and Refusal Hearings, Part 1" »

The client came to us with a legal problem - and a conundrum. He'd been 'breathalyzed' after a minor fender-bender, because a police officer had smelled beer on his breath. His blood alcohol content? Well, as measured by the machine, it was in the low astronomical range. That was the legal problem. His actual intake prior to the accident? Two 12 oz. beers, he said. That was the conundrum.

The legal problem was clear enough: a B.A.C. of .07 - one third our client's reported B.A.C. of .21 - is prima facie evidence of impairment. ('.07' here is shorthand for ".07 of one per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva." This formula is laid out in Section 1192 of the Vehicle and Traffic Law.)

A driver with a B.A.C. of .08 or greater is driving while intoxicated - a misdemeanor, if it's a first offense, a felony if not.

A B.A.C. of .18 or greater will buy you a charge of 'aggravated' driving while intoxicated. A first offense is still a misdemeanor, but fines and license revocation periods are essentially doubled. And perhaps most importantly for a first offender, the law makes it difficult to get the charge reduced to 'driving while ability impaired', which is a traffic violation. With a reported B.A.C. of .21, our client was, of course, facing a charge of aggravated DWI.

It's hard, though, to commit aggravated DWI on two 12 oz. beers. You will surely have an elevated B.A.C. if you drink them both within an hour. If you weigh a hundred pounds or less, you might even reach a B.A.C. of .08, which would make it criminal to drive. But it's a long way from .08 to .21, and our client, while not a large man, was by no means tiny, either: two beers might have given him an actual B.A.C. of at most .05.

How do you solve a mystery like this? In most cases, sadly, it turns out that the client was mistaken about the number of drinks or the size of the drinks. ('Just one beer' has more than once turned out to mean a 32 oz. bottle.) Every once in a while, though, a client seems very sure of his or her facts. And this was one of those times.

Continue reading "DUI/DWI in New York: The 'Mount Everest' Defense" »

A recent article in Long Island's Riverhead News-Review relates a sad and, sadly, all too common occurrence. Two cars collide. Both drivers are hurt. One of the drivers, according to police investigating the accident, has had too much to drink.

That driver is charged with Driving While Intoxicated (DWI) (and in this case, according to another article in The Long Island Press, with driving without a license, and crossing the divider of a limited access highway). He is given a court-ordered blood test. Later, he must appear in the local criminal court, "where," the News-Review notes, "he might face additional charges."

What might those charges be? As the Long Island Press correctly notes, it depends on the results of the blood test. If the test confirms what the police apparently suspect -- that the defendant had a blood alcohol content (BAC) of .08 or greater -- a number of options will open up for the prosecution.

First, the defendant is currently charged with what lawyers call "common law" DWI [Vehicle and Traffic Law Section 1192(3)]. Intoxication is proven using roadside tests of impairment, such as the one-legged stand and reciting the alphabet backward, along with testimony that the defendant admitted drinking and/or smelled of alcohol. A blood test result of .08 or greater would expose the defendant to an additional misdemeanor charge: driving with a BAC of .08 or greater as measured by a test of blood, breath or urine [Vehicle and Traffic Law Section 1192(3)].

The defendant's potential exposure goes far beyond these misdemeanor charges, however.

Continue reading "DWI/DUI and Serious Injury in New York" »