Aggravated DWI Queens New York NY

Reader’s Question:

A friend of mine told me that his DWI case here in Queens, New York is an aggravated DWI. What can be considered an aggravated DWI in the state of New York?

Mariz

Queens, NY

Your friend must have a high blood alcohol content (BAC) that’s why he was charged with aggravated DWI in Queens, New York. Back in 2006, the state of New York passed a new law establishing an Aggravated DWI offense and this applies when the BAC is found to be 0.18% or higher. This aggravated DWI offense carries stiffer penalties, higher fines and the driver’s license consequences are more severe.

The most significant impact of the new law perhaps concerns plea bargaining. It is very common for a lawyer to get a Driving While Ability Impaired (DWAI) violation deal for someone charged with a DWI. DWI charge is a misdemeanor which is a crime while DWAI is only a violation, and is not considered a crime in the state of New York. It would be nearly impossible to get a plea deal to the DWAI violation with the aggravated DWI charge. The only offer would be a reduction to a misdemeanor DWI, and thus a criminal record.

Tags: drunk driving laws, DWI, DWI lawyer, DWI trial

Felony DWI Buffalo New York NY

Reader’s Question:

What does it mean if a DWI case is a felony DWI? I heard my parents talking that my father’s DWI case here in Buffalo, New York is a felony case.

Camille

Buffalo, NY

Your father’s DWI case in Buffalo, New York might not be his first DWI charge. In general, felony DWI charges in the state of New York happen if the defendant has a previous DWI conviction within the past 10 years. This is the most common scenario that could lead to felony charges involving a DWI. Another example of felony DWI is if the DWI itself is a misdemeanor but the driver is charged with some other felony, like vehicular manslaughter if someone is killed.

Felony cases are definitely more serious than misdemeanors and include the possibility of state prison time. In the court system of the state of New York, these more serious criminal cases are mostly handled in the higher level courts. Misdemeanor cases stay in local courts and most of the substantive work in a felony is done in County Court. The prosecutors in felony cases tend to be more experienced and more thorough than local court prosecutors. Also, they have fewer cases so that they could devote more time to each case. Therefore, an accused less likely to win a DWI case through prosecutor error but police errors are still common in these cases and they are certainly winnable.

Tags: drunk driving laws, DWI, DWI lawyer

DWI Case Union New York NY

Reader’s Question:

My cousin was charged with DWI here in Union, New York and I don’t know why he is so worried. Could you tell me one good reason why he should take this matter seriously?

Jada

Union, NY

Your cousin has every reason to be worried about his DWI charge in Union, New York. To be honest, not only I could give you one reason, but I could give you several reasons why he has to take this matter seriously. First on the list is that his DWI charge will follow him for the rest of his life if he will be convicted. The Department of Motor Vehicles (DMV) would keep track of his record for at least 10 years. The DMV would have to make sure that his driver’s license is taken away from him for 18 months, if he will be convicted for DWI.

Another reason is that the additional auto insurance charges alone may cost him thousands of dollars. His insurance company should notify the DMV in advance if he doesn’t maintain his insurance. He will also have increased rates if he gets convicted for DWI. He can also lose his job or future job opportunities because most employers or potential employers do background check on their employees. Travelling outside of the country will also be affected because many countries do not accept those who have DWI convictions.

Tags: DMV, driver’s license, DWI, DWI conviction, DWI lawyer

DWI Pre-Trial Motions White Plains New York NY

Reader’s Question:

It’s nearing the trial phase for my brother’s DWI case here in White Plains, New York. He mentioned that they would still have to go through the pre-trial motions. Could you please explain what pre-trial motions mean and what would the defense usually have to do during that stage?

Reed

White Plains, NY

A motion simply means an application by the lawyer seeking some type of relief from the Judge. The motion would be presented to the Trial Judge either a written formal motion or orally in an open court. Through a motion, it would bring a limited, contested matter before a court for decision. This could be thought of as a request to the judge to make a decision about the case.

The defense of your brother’s DWI case in White Plains, New York could ask the judge for relief to compel the state of New York to supply discovery, to suppress or exclude statements based on the lack of a knowing and intelligent waiver of Miranda rights and suppress or exclude evidence based on some constitutional defect such as an unlawful DWI stop and detention of your brother. They could also ask to limit the testimony of the State witnesses or to preclude witnesses from using the term “fail” with regard to your brother’s performance on field sobriety tests. In pre-trial motions, the defense could also ask to dismiss the charges because of the State’s failure to afford your brother his constitutional right to a speedy trial and possible exculpatory evidence or the State’s inability to sustain the DWI charge.

Tags: DWI, DWI lawyer, DWI trial

DWI Miranda Warnings Tonawanda New York NY

Reader’s Question:

I wasn’t read my Miranda rights when I got arrested for DWI in Tonawanda, New York. How would this apply to my DWI case and is it true that my case will not be dismissed because of that?

Elijah

Tonawanda, NY

We should be thankful to TV shows like Adam-12, Law & Order, and Dragnet because almost everyone is already familiar with the Miranda warnings. The police officer would say that the accused has the right to remain silent and anything he/she says can and will be used against him/her. This is also usually being followed by, “You have the right to an attorney and if you cannot afford an attorney, one will be provided for you, free of charge prior to questioning; having these rights in mind, do you want to talk to us?”

You might be complaining that you were not read your Miranda warnings when you were arrested for DWI in Tonawanda, New York. Unfortunately, the police officer’s failure to give you your Miranda warnings would not result in a dismissed DWI case. Miranda warnings are designed to avoid overreaching by officers in situations that are inherently coercive, specifically where there is “custodial interrogation.” Custodial means that the person being investigated for DWI is not free to leave or otherwise terminate the encounter. The good news about their failure to give you the Miranda warnings is that this would result in the suppression of your statements obtained during the interrogation.

Tags: DWI, DWI arrest, DWI lawyer

DWI HGN Text Yonkers New York NY

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

DWI For Non-US Citizen Schenectady New York NY

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

DWI Case Trial Niagara Falls New York NY

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

DWI Right To An Attorney New Rochelle New York NY

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

Hamburg New York DWI Breath Test

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

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