Defeating the New York DWI Refusal Case
My typical day begins something like this, "Hi, I got arrested for a DWI last night?" and my response is usually, "let me ask you a few questions first to help give you some guidance and direction." The reason for my first couple of questions is to tell me exactly what "type" of DWI case we are dealing with.
DWIs like people come in different shapes, sizes, and packages. DWIs can be:
1. With or without a traffic stop, ie. maybe the police were called to the scene to investigate an accident, or a person asleep behind the wheel, or a BOLO (be on the lookout) for an erratic driver, called in from a tip
2. With or without a breath test (the chemical test back at the police station or barracks)
3. With or without prior DWIs or DUIs or DWAIs or ADWIs
4. With or without a New York State Driver's License
5. With or without a Sobriety Check Point
By no means is this list complete. There are many different DWI situations and combinations.
The Chemical Test Refusal DWI Case is unique for a number of reasons.
First the positives of the refusal case:
1. The police and prosecution do not have a breath test BAC to prove their case.
2. They can not charge VTL 1192 (2) BAC .08 or > or VTL 1192 (2) (a) Aggravated DWI BAC .18 or >.
3. The prosecutor can only charge VTL 1192 (3), "Common Law" DWI.
4. The prosecutor usually only has one main witness, the arresting officer.
5. The prosecutor must prove that "you were mentally and physically incapable ( to a substantial extent) of operating an automobile as a reasonably prudent driver."
6. They must prove this legal burden of "intoxication" beyond a reasonable doubt based upon the police officer's observations, and field testing, if any.
7. They can not use the Preliminary Breath Test results (at roadside) to prove their case.
8. The DWI defense lawyer can cross examine the police officer at the DMV administrative hearing without the presence of the prosecutor.
9. The cross examination can cover the stop, the arrest, and the field testing.
Second, the two main negatives of the refusal case:
1. You will have NO license of any type (conditional or hardship) while your criminal case is pending. NOTE: unless you win at the administrative refusal hearing (unlikely) or the officer does not show for the hearing and it is re-scheduled.
2. The jury will get an instruction from the Judge that they may infer a Consciousness of Guilt from your choice to not take the chemical test.
Personally, I like Refusal cases because they offer opportunities to challenge the purely opinion evidence of intoxication. The opinion of the officer is an opinion based in bias. He or she will want to support their decision to stop and arrest you. Their instructing, demonstrating, and evaluating you on the Field Sobriety Tests or (Roadside Agility Maneuvers) can usually be shown to be unfair. If we can show you were coherent (understood the officer's directions, instructions, questions) then providing other reasons for your bloodshot eyes, slurred speech (or impairment), and lack of balance create REASONABLE DOUBT in the minds of the jury as to your intoxication.
Questions and Answers
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