New York City Driving While Intoxicated or Impaired (DWI) Cases

Driving While Intoxicated is a crime in New York that creates a number of issues and difficulties for people who are accused. Driving While Intoxicated, or DWI cases in New York City can range in seriousness and complexity from something that can be dealt with in relatively short order without significant inconvenience to full blown felony charges carrying potential long term state prison sentences.

Trials of Driving While Intoxicated cases can, under some circumstances, be among the most specialized and complex, expert driven trials or a comparatively far simpler trial essentially boiling down to a determination of who was driving the car in question.

In order to know where your New York Driving While Intoxicated case fits in the grand scheme of driving while intoxicated cases, you ought to consult a New York criminal defense lawyer with experience in the area of driving while intoxicated cases.

In the New York Metropolitan Area, Driving While Intoxicated Cases create a number of problems beyond the obvious problem of being accused of a crime Some of these problems can even require retaining counsel separately from the criminal case itself.

For example, if you are arrested for Driving While Intoxicated in New York City or Nassau County or Westchester or Putnam County you could face the following additional problems:

Commercial Drivers (CDL Holders) Beware!

If you hold a Commercial Driver's License (CDL) and you are accused of any driving while intoxicated offense, you are in extremely serious trouble with respect to your ability to use your CDL. The penalties for conviction of a DWI related offense for CDL holders are extreme and potentially devastating. Do not assume that the same rules involving suspensions and conditional licenses apply to you because they don't.

Refusal Hearing

If the police claim that you refused to take a breath or blood test, then the Department of Motor Vehicles will be holding a hearing SEPARATE AND INDEPENDENT FROM THE CRIMINAL CASE that could result in your license being revoked for one year (changed from six months). Although the burden is low and the defenses are limited, it is possible to win these hearings. Furthermore, they do offer an opportunity on occasion to cross-examine the arresting officer and obtain some critical paperwork in the case.  Read our in-depth treatment of the issue of refusal to take a breath test in a driving while intoxicated case in New York City.

Car Forfeiture

The police departments may seek to forfeit the car they claim was used for the driving while intoxicated. Forfeiture is another SEPARATE AND INDEPENDENT court proceeding in which the police department is allowed to sue you and, if successful, keep your car. Forfeiture actions are not brought by the District Attorney's Office. They are brought by the Police Department itself. The outcome of the criminal case is totally irrelevant to the forfeiture action by the police. In other words, you could win your driving while intoxicated case at trial in New York, and the police could still sue you for your car AND WIN. The forfeiture lawsuit is a civil lawsuit subject only to the relatively small burden of proof of preponderance of evidence. A victory in criminal court merely means that the Government did not meet the burden of beyond a reasonable doubt. Forfeiture actions are real lawsuits in which you will have to decide whether you will hire a lawyer to defend the suit.

Insurance Premiums

A plea or conviction to a driving while intoxicated related offense could result in an increase in insurance premiums.

Suspension of License Pending Prosecution

In some circumstances, simply being accused of driving while intoxicated can result in the suspension of your license even before you have been convicted of anything. Since our courts have decided that having your license suspended is not a punishment, it has been held that suspension of your license before you have been convicted does not run afoul of the presumption of innocence.

License Suspension or Revocation on Conviction

A plea or conviction to a driving while intoxicated related offense will result in difficulties with your license to drive in New York that could range from a relatively brief suspension to a lengthy revocation.

Enhanced Sentencing in Future

A plea or conviction to a driving while intoxicated related offense will cause you to be subject to enhance the potential punishment if you are convicted of another dwi related offense in New York. For example, if you are convicted of driving while intoxicated and are arrested for another driving while intoxicated in New York within ten years, you face felony driving while intoxicated charges and could go to state prison.

Different Versions of Driving While Intoxicated in New York

Driving While Intoxicated comes in different forms in New York, "common-law" and statutory.

Common-Law Driving While Intoxicated

Common-law driving while intoxicated in New York allows you to be accused of driving while intoxicated even though there is no scientific test about your blood alcohol level. According to the law, whether or not a person is intoxicated is the sort of thing that nearly anyone can give an opinion about without being an expert. It is the sort of thing that the law says nearly everyone is an "expert" in. That means that you could be convicted of driving while intoxicated by the testimony of a police officer who simply said that in his opinion you were intoxicated. Of course at such a trial, your lawyer would have an opportunity to challenge the assumption of the police officer and point out the possibility of the alternative assumption that you were not intoxicated.

Statutory Driving While Intoxicated

Statutory driving while intoxicated in New York permits the Government to accuse you of driving while intoxicated based upon scientific proof of the level of alcohol present in your blood. Under current New York State law, the point at which you are intoxicated is when your blood alcohol level is .08 percent or above.

Proof of this blood alcohol level can be accomplished by evidence of any one of a variety of tests a person accused of driving while intoxicated can be asked to take after arrest. The most common test in New York is a Breath Test that, according to its proponents, analyzes your breath and converts the results to blood alcohol level.

These machines (and there a few different versions of them) all make certain assumptions about the way people absorb alcohol into their systems. The machines also make a variety of other assumptions about human physiology. These assumptions are subject to dispute and there are a variety of means to attack the results of these machines.

Attacking the results of the machines, however, usually means hiring one or more expert witnesses. Frequently people accused of driving while intoxicated are unwilling or unable to obtain an expert. Expert witnesses to attack the breath machine's results are frequently employed in more serious driving while intoxicated cases, like for example felony driving while intoxicated cases.

The Government prefers to use the statutory form of driving while intoxicated because they like being able to produce scientific evidence of the intoxication as opposed to relying on police statements that the accused had "bloodshot watery eyes, slurred speech and was unsteady on his feet." There are occasions, however, when for any number of reasons, the actual scientific result is not permitted to be used, and the only thing left is the common law case. From the defense perspective, a common law case is probably a better case to take to trial because it is easier to challenge the assumptions of a police officer than it is to challenge the printout of a machine.


James Shalley, pictured above, is one of the founding partners of Shalley and Murray.  He has been a practicing criminal defense lawyer for more than 27 years in New York City and has represented countless good people accused of driving while intoxicated or impaired during his career.  Mr. Shalley can help you too.  Call or text for your free consultation now.

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