Understanding a DWI Arrest in New York

Watch the following educational legal video by New York DWI Attorney Robert Aiello as he explains what happens after a DWI arrest in New York.

DWI cases are among today’s fastest growing cases. You can’t go to a cocktail party and talk to anyone who hasn’t either been arrested for a DWI or who has a family member or friend who’s been arrested for a DWI. It’s like fishing in a fish tank. What they do in these kinds of cases is use undercover operations. Basically they have a unit set up to capture drunk driving cases. Guys in unmarked cars go to the busiest areas in Queens, Nassau, and Manhattan and sit in their cars outside the popular bars. They wait for people to walk out of the bar, go to their cars, get in and drive off.

Now that they’ve watched this happen, they follow the vehicle. If you’re the driver, you make a right. You make a left. Maybe you don’t make a full stop or you do make a full stop, but fail to signal. At some point, after about a quarter to a half mile, the red lights go on and they pull your vehicle over to the side and approach your car. The first thing they’ll say to you is, “Where are you coming from?” That’s a set-up question. If you tell them you’re coming from a bar, their next question will be, “Did you have anything to drink?” Who goes to a bar and doesn’t have anything to drink?

Of course, now you’re driving. You’ve admitted that you’ve had something to drink. What’s the next question? “How many drinks did you have?” Are you going to say, “I had seven beers?” That’s not going to help anything. Are you going to say you had nothing to drink or that you had one beer? Most people say, “I had one or two beers.” Well, they’ve heard that excuse for years, and they know that’s not going to fly. If you tell them, “I’m coming from visiting my friend,” they know you’re lying because they just saw you walk out of the bar, so there’s no surprise there. Either way, at this point, you’re going to be asked to provide your license and registration.

At some point, you will probably be asked to step out of the car. The lights are shining and, right now, your adrenaline is going through the roof. You don’t know what to do. What I tell people is, “Look. The first thing you need to do when this happens to you – if you can – is be polite to the police officer. Don’t argue with the police officer. When the officer asks for your license and registration, give him your license and registration. Cooperate with him. However, when he asks you how much you’ve had to drink, I would suggest that you refrain from answering those questions because nothing good is going to come of that.”

While that officer’s talking with you, he’s making certain observations as to whether you have bloodshot eyes, slurred speech, or the smell of alcohol on your breath. Every criminal court complaint includes those three things. The officer will ask you to step out of the car and, while you’re out of the car, they’ll ask you to perform certain coordination tests to determine whether or not you’re too blotto to operate your car. They may also ask you take a portable breathalyzer test by blowing into a little device they have at the scene, to see whether or not you register a high level. Then, in all likelihood, if you’ve had anything to drink, you are going to be arrested, whether or not you take the test.

One of the most common questions people ask me when I’m at a cocktail party is, “Mr. Aiello, if I’m out and I have a couple of drinks and get stopped by the police, what should I do? Should I take the test?” There’s no simple answer to this question, but I tell my clients, “If you’re involved in an accident and someone is seriously injured, do not take the test. If you’re involved in an accident in which someone dies, do not take the test. In those circumstances you never take the test.”

Once you’re at the precinct and they ask you whether you want to take the test, you need to understand certain things. Under New York law – because driving is a privilege and not a right – the Department of Motor Vehicles can take your license away from you for up to one year for refusing to take the test. You’re entitled to a hearing at the Department of Motor Vehicles within 15 days; however, during that 15-day period, you will not be allowed to drive. If you lose at the hearing, you’re not going to have your license for the next year.

It’s very important to make a smart choice when it comes to whether or not to take the test. Ideally, if you’re able to reach out to an attorney who may be a friend or family member and get their advice, that would be helpful. Usually, though, at 2 or 3 o’clock in the morning when you get stopped, you’re not likely to have access to someone, so you’ll have to make the decision on your own. It’s important to understand that, if you refuse to take the test, your license will be automatically revoked for up to one year.

So – do you take the test? That’s a difficult assessment, but here’s what I generally say to people. “If you can tell me that you were in the bar or restaurant and had two, three, or four drinks over the course of an evening – maybe you shared a bottle of wine with your girlfriend, your wife, or your partner. If you had a cocktail, and then two glasses of wine with dinner, and maybe an after-dinner drink over the course of four hours, I would say take the test. On the other hand, if you’ve been in there pounding shots one after the other, and you know you’re blotto, and that if you take that test you’ll register off the chart, don’t take the test because it’s not going to do you any good.”

Under our law, if you blow above a 0.18% – which is a very high level, but one you can reach if you’re an alcoholic or someone who drinks on a regular basis – you’ll be charged with aggravated driving while intoxicated, which puts you in a whole other level in terms of possible penalties and your potential for going to jail. At that point, you should probably refuse. If you can honestly say to yourself, “Look. I had a couple of drinks tonight, but I’m fine operating this motor vehicle. I didn’t have an accident. I feel pretty good, and I can pass these coordination tests,” then I would recommend taking the test. In all likelihood, you will probably blow below the legal limit of 0.08%, or slightly above it, maybe 0.10 or 0.12.

If I’m representing you – and most other attorneys who do this for a living will probably also be able to work out a deal for you – that deal will involve a plea to something less than driving while intoxicated. If you plead to driving while intoxicated, that’s a crime, and our goal is always to avoid a criminal conviction for our client. That way, in the future, if you have to fill out an application for a job or a license, you can truthfully say you’ve never been convicted of a crime. If you’re charged with a DWI offense, driving while intoxicated, that outcome is our typical goal – unless we’re fighting the case because we don’t think they can prove the case against you beyond a reasonable doubt.

On the other hand, you might come to me and say, “Look. Mr. Aiello, I was drinking. I was driving. I had probably had too much to drink. I made a mistake. I don’t want it to ruin my life. What can you do for me here?” In that case, after a thorough investigation during which we determine that they can probably prove your guilt beyond a reasonable doubt, you may want to consider whether we can work out a fair disposition for you. If we can get you a plea to driving while ability impaired – a violation but not a crime – that would be a good result for you because you won’t have a criminal conviction. We can also get you a conditional license which will allow you to drive to and from work, so your life won’t be that severely impacted. In the short term, your insurance premium may go up; but, it won’t have the disastrous effect that would result from being convicted of driving while intoxicated, which is a crime rather than a violation.

Robert J. Aiello is a principal and founding member of the law firm and a trial attorney.  His practice is devoted primarily to criminal defense in State and Federal Courts. Mr. Aiello has been involved in many high-profile cases throughout his career. Contact us at our Maspeth, Queens office today to schedule a free and confidential consultation with experienced New York DWI attorney Robert Aiello.


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