Reader’s Question:

They say that police officers are looking for certain clues when they ask a person suspected for DWI to do the horizontal gaze nystagmus test. Does this test would really tell an officer if a person is drunk? Is it true that I don’t have to submit to any of these field sobriety tests if I will be caught drunk driving in Yonkers, New York?

George
Yonkers, NY

Yes, it’s true, you don’t have to submit to the field sobriety tests if you will be suspected for DWI in Yonkers, New York. These tests are voluntary and you are not required by law to do any of these even if asked by police officers. In doing the horizontal gaze nystagmus test (HGN), officers look for a total of six clues, which will be three from each eye. These are if the eyes twitch at maximum deviation, if the eyes pursue smoothly and if they twitch before the onset of forty five degrees. It is said that two out the six clues supposed to mean a blood alcohol content (BAC) which is under 0.08, four out of the six clues supposed to mean a BAC level of 0.08 and six out of the six clues supposed to mean a BAC level of 0.10 or more.

What the officer would not tell you is that they learned in training that HGN test always work. That’s because first, everyone has a natural nystagmus or twitching in the eye. Second is that flashing lights or strobe lights could cause the eye to twitch. Also, sudden changes in cold and heat could cause the eye to twitch, among other things. The bottom line is that the HGN test may work well in the dark officer of an optometrist or ophthalmologist but not on the side of the Interstate.

Tags: DWI, DWI lawyer, field sobriety tests

Reader’s Question:

What does it mean if a crime involves moral turpitude? My friend’s boyfriend who is not a US citizen was charged with DWI in Schenectady, New York and he said that he was told that he could be deported if his DWI case involves moral turpitude.

Shirl
Schenectady, NY

Non US citizens could be deported if convicted of a crime which involves moral turpitude carrying a maximum possible sentence of one year or more. If your friend’s boyfriend would be convicted for DWI in Schenectady, New York, the conviction could result in problems for him seeking admission or readmission to the US. An ordinary DWI conviction alone by itself would not result in denial of immigration benefits. In general, an ordinary DWI conviction would not be considered as a crime involving moral turpitude. However, if it is combined with an aggravating factor, the DWI conviction would be treated as a crime involving moral turpitude.

If the DWI conviction is assessed to be an aggravated felony even if the conviction, fine or settlement didn’t involve a crime involving moral turpitude, it may have a severe impact and adverse affect on the immigration process including deportation and a bar to re-entry. Aggravated felonies are those which are violent or other crimes that result in sentencing of one year or more. A criminal offense violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years would also be considered as an aggravated felony. The alien could be deported even if the conviction was before the date the enactment of the specific ground of aggravated felony as a removable offense.

Tags: drunk driving laws, DWI, DWI lawyer, immigrant DUI

Reader’s Question:

I got arrested for DWI in Ramapo, New York after I failed the breath test. I was told that there are certain non-alcoholic compounds that can affect the breath test results. What are these compounds and how do they affect the breath test results in a DWI case?

Anthony

Ramapo, NY

As expected, breath testing machines have flaws in analyzing the breath of a person suspected for DWI. These machines are not very reliable and could be thoroughly attacked by a DWI defense lawyer who is fully aware of the weaknesses of these breath test machines. So you must educate yourself of the flaws of the breath test machines so that you can use it as defense on your DWI case in Ramapo, New York.

Aside from identifying ethanol or ethyl alcohol, DWI breath alcohol testing machines detect non-alcoholic compounds as well. These non-alcohol compounds are frequently mistaken for alcohol. Some of the compounds that are commonly mistaken for alcohol are toluene, acetonitrile, ethylene, isopropanol, diethyl ether and nitrous oxide. The occurrence of any of these non-alcoholic compounds in the DWI suspect’s lung tissue would likely cause false, or falsely high, blood alcohol content (BAC) reading. It has been found that people frequently ingest these kinds of compounds at work or in other environments where the chemicals are present.

Tags: blood alcohol content, breath test, DWI, DWI arrest, DWI lawyer

Reader’s Question:

I don’t know the court process here in Niagara Falls, New York and I wanna know certain things about DWI. In a DWI case trial is it necessary for a defendant to be on the stand or the defense lawyer would not let this?

Frederick

Niagara Falls, NY

Expert DWI lawyers believe that it is not a very good idea to put the defendant on the stand in a criminal DWI court trial. The main reason for this is that defendants are not experienced witnesses and they often appear to be nervous. Just imagine yourself being in a DWI court trial in Niagara Falls, New York, you were put on the stand and you haven’t experienced being in the same situation before. Although, your lawyer might have discussed how you would act and answer, it would still be different when you’re already there.

Having a defendant on the stand would also shift the jury’s focus. The primary objective of the defense in a DWI court trial is to show that the prosecutor’s case is not strong enough to convict a person beyond reasonable doubt. But if the defendant is put on the stand, the focus will shift on the credibility and honesty of the defendant. The jury would then be forced to choose between the officer and the defendant and it would give the prosecutor the chance to make the defendant look like he’s hiding something. The only good time that a defendant to be put on the stand is to contradict something that the officer said.

Tags: DWI, DWI lawyer, DWI trial

Reader’s Question:

My cousin was arrested for DWI in New Rochelle, New York and he wasn’t able to contact an attorney until he was already at the police station. Question is, when does a person who is arrested for DWI have an absolute right to an attorney?

Edwin

New Rochelle, NY

If the police officers in New Rochelle, New York are going to interrogate a person or ask questions about the DWI arrest, he/she has an absolute right to an attorney. A person does not have a right to a lawyer to decide whether or not to take a breath or blood test. Every individual has an absolute right to an attorney at their criminal trial.

Anyone who is in custody of a police officer where it can be viewed that the person is under arrest, even if he/she was not told “your under arrest,” is absolutely entitled to be informed of their rights if the officer is going to ask him/her questions. These rights include the right to remain silent, the right to a New York DWI lawyer prior to and during any questioning, the right to a free lawyer if the person cannot afford one and the right to terminate interrogation at any time. But if an officer violates these rights, it does not necessarily mean that they DWI will be dismissed. Rather, any incriminating statements that we obtained illegally would be prevented from being admitted against the person in the criminal court trial of the DWI case.

Tags: blood alcohol test, breath test, DWI, DWI lawyer

Reader’s Question:

It seems that police officers in Levittown, New York are conducting field sobriety tests on a driver whom he feels that is under the influence. Are all kinds of field sobriety tests considered as indicators of intoxication?

Dakota

Levittown, NY

There are two types of field sobriety tests that police officers in Levittown, New York ask a person suspected of DUI to do- standardized and non-standardized. There are three standardized tests that are recognized by the National Highway Transportation Safety Administration (NHTSA) and there are also non-standardized tests that are not recognized by the NHTSA but are still used by police officers. Some examples of non-standardized tests include the numbers backward test, finger-to-nose test, coin tricks, Rhomberg balance test, finger tap test, ABCs and hand pat test. These non-standardized tests are considered unreliable indicators of alcohol impairment.

If a driver is asked to do any of the non-standardized tests, it can be successfully challenged in court because these tests are not recognized as accurate indicators of intoxication. Although the non-standardized tests are also designed to measure physical and mental impairment from alcohol use, a lot of these signs could be traced to physical problems other than alcohol.

Tags: DUI, DUI arrest, DUI lawyer, field sobriety tests

Reader’s Question:

I’m doing a little research about DWI cases because a friend of mine was arrested for DWI here in Hamburg, New York. In order to prove his innocence, I’m focusing now on how the breath test result can be attacked. Could you help me and tell me how me the breath test can be proved to be inaccurate?

Callista

Hamburg, NY

One of the ways on how a breath test result can be proved to be inaccurate is to know how fast your friend’s body eliminates the alcohol. Each one of us has different metabolism but the breath test machine assumes that each one of us is the same. In other words, an individual whose body gets rid of alcohol slower would have higher blood alcohol content than someone with a faster metabolism, even if they both have the same amount of alcohol to drink. The breath test assumes that the individual is “post absorptive.” That means that the breath test assumes that the individual is no longer absorbing alcohol into the blood.

If your friend has a slow metabolism, he might still be absorbing alcohol by the time he took the test when he was arrested for DWI in Hamburg, New York. And if so, the breath test would read his blood alcohol content as significantly higher than it actually is. If he knows or suspects that he has a slower than average metabolism, he may actually argue that his metabolism skewed the result of the breath test.

Tags: breath test, DWI, DWI advice, DWI arrest, DWI lawyer

Reader’s Question:

The law really confuses me and it made me even wonder more after my brother has been arrested for DUI here in Irondequoit, New York. What are the things that constitute a valid DUI arrest and what would be next stage following the arrest?

Blaze

Irondequoit, NY

The first stage of the DUI process is the arrest. So that the traffic stop would be valid, the stop must be supported by reasonable suspicion that a violation has been committed. The police officer should have a reasonable and articulable suspicion that a violation of the traffic laws has occurred in order to bring about a stop for DUI. Once a motorist has been stopped, the police officer should have a probable cause to believe the driver is intoxicated before they could make an arrest and conduct a breath test.

After your brother’s DUI arrest in Irondequoit, New York and if the Complaint is already filed, he would make his first appearance in court at Arraignment where he is informed of the charges against him. During the Arraignment, he is also informed of his rights under the law and enters a plea of guilty or not guilty. If he hires a DUI lawyer to represent him, the initial appearance could normally be waived. The arraignment could be “adjourned” by the DUI lawyer sending a letter of representation to the Court advising it that your brother is represented, were advised of his rights, and that he is entering a plea of not guilty.

Tags: drunk driving laws, DUI, DUI arrest, DUI lawyer

Reader’s Question:

I understand that there are gonna be two separate cases that I would have to face after being arrested for drunk driving in Clay, New York. What I don’t understand is why I should be charged two cases when I was only arrested once. Could you explain to me how come they would have to charge me two different cases?

Malik

Clay, NY

After your drunk driving arrest in Clay, New York, the two separate DUI charges you would have to face are being impaired while driving and the other one is having a blood alcohol content above the legal limit of 0.08%. In theory, if we would come to think of it, being legally intoxicated and being impaired require two different kinds of proof.

Regardless of the blood alcohol content, a person’s driving may be impaired if coordination and cognition have been substantially affected because of having alcohol in the system. One great example is administering the field sobriety tests. These tests, as many people claim, are meant to determine a person’s level of impairment. And on the other side of the spectrum, a person may be considered to have been legally intoxicated after the results of a chemical test of blood, breath or urine show a blood alcohol content above the legal limit.

Tags: drunk driving laws, DUI, DUI advice, DUI lawyer

Reader’s Question:

I know someone who was arrested for DUI here in Colonie, New York who did not call a lawyer when he was taken to the police station and he was told that it was the worst thing that he can do. If the same thing happens to me, do I have the right to a lawyer or a phone call when I’m taken to the station when arrested for DUI?

Aldin

Colonie, NY

You may, rather I would definitely say you should ask to see a DUI lawyer as soon as you arrive at the police station if you get arrested for DUI in Colonie, New York. Since you are already under arrest for DUI, anything you say might be used against you that is why you should not say anything without a lawyer present or booking at the jail. You have the legal right to make a phone call to a lawyer, bail bondsman and/or any relative or other person such as a friend.

The police should not listen to the call to your lawyer and any communications made to your lawyer. I strongly suggest that your call should be discrete and should be made in such a way that you cannot be overheard by any other person especially by a law enforcement officer. You should definitely pay attention to your surroundings when you are making the call and notice if the police or anyone else can overhear the conversation.

Tags: DUI, DUI advice, DUI arrest, DUI lawyer