New York DUI / DWI Lawyers – Perlmutter & McGuinness, P.C.

New York DWI Defense Lawyers

Find yourself in need of a New York DWI Lawyer?

If you have been arrested for a DUI or DWI in New York City, Long Island or Westchester, we can help.

The DWI / DUI attorneys at Perlmutter & McGuinness, P.C. have over a decade of experience in successfully defending New York drunk driving, DUI / DWI, drinking and driving, and driving under the influence of drugs (DUID) cases.

New York DWI law is complex, and our attorneys have the unique education, training and experience necessary to defend your case throughout NYC or in any court throughout southern New York State.

WHAT TO DO IMMEDIATELY AFTER A DWI

No matter what the circumstances, being arrested for DWI / DUI can be a stressful and upsetting experience. Perhaps you were stopped at a drunk driving checkpoint on your way home after a few drinks at an office party or at a restaurant. Or maybe you were involved in serious car accident that resulted in a DWI / DUI investigation.

Whatever the case may be, an arrest for drunk driving necessitates quick action in order to protect your rights and preserve your right to drive. You need an experienced New York DWI / DUI lawyer who appreciates the seriousness of your situation and will help you to navigate the system during this critical time.

What You Need To Understand

DWI cases are a complex intersection between criminal justice and science. No other crime has a purported scientific test that supposedly tells you automatically whether you are guilty or innocent. No other charge is more frequently leveled against otherwise completely law abiding citizens.

Our DWI clients comprise some of the most successful business people, professionals and artists in the world. They are not criminals and very often have not done anything wrong. Simply stated: A DWI arrest can happen to anyone. If you have a glass of wine at dinner and do not stop completely for a stop sign, you can be arrested and charged in New York for committing the crime DWI. Because of this very scary fact, you need a team of lawyers that understands and studies DWI law with the focus and determination of attorneys practicing at the highest level of the bar. You will see from the information contained on our website that we care deeply about providing the highest quality representation to individual charged with DWI. We look forward to the privilege of helping you too.

Have you been charged with a DWI, DWAI, or DUI in New York?

Contact us today for a free consultation: (646) 742-9800

Search our NYPD BREATHALYZER TESTING RECORDS database to see if the machine used to test you was faulty.

New York DWI Law Information:

 


The Elements of the Offense

Every DWI case presents a unique set of facts and challenges, but every in every case the prosecutor must establish the same basic elements: (1) Driving/ Operation; (2) Of a Motor Vehicle; (3) On a Public Highway; (4) While Intoxicated or Impaired, proven by either by Per Se Intoxication or Totality of the Circumstances;

The standard of proof in a New York DUI / DWI criminal case is guilt beyond a reasonable doubt.  This means that each and every element of the charged offense must be established by the prosecutor in order to convict a defendant of Driving While Intoxicated.   Since the burden to convict rests with the prosecutor, drivers are not required to present any evidence in their defense at trial.  However, an experienced New York City DWI lawyer will determine prior to trial whether to put forth a case on behalf of his/her client.

There are four elements which make up the offense of driving while intoxicated or impaired in New York. In order to sustain a verdict of guilty beyond a reasonable doubt, a prosecutor must prove the following:

  1. Driving/Operation of
  2. A Motor Vehicle
  3. On a Public Highway
  4. While Intoxicated or Impaired

The fourth element is often the most important in a DWI trial.  A person’s intoxication or impairment may be shown in one of two ways, either by showing Per Se Intoxication, or by a “Totality of the Circumstances.”

Each element has significant definitions and multi explanations.  Defining these terms is not as  straightforward as it may seem.  There are critical contrasts within the terms that Adam Perlmutter & his team will be able to use to your advantage.

 


DWI Pretrial Motions

In a DUI / DWI court case, a drunk driving defense attorney may introduce a number of motions before the case goes to trial. All of these motions, if successful, will aid the defendant and the defense lawyer by suppressing evidence and/or statements that may harm the defendant’s case, providing more information about the prosecution’s case, making it possible for an independent expert to analyze chemical test results, or allowing the attorney to learn more about any complaints made against an arresting officer.

These pretrial motions may include motions to suppress evidence, gain supplemental evidence through discovery, split blood or urine samples for independent testing, strike prior drinking and driving convictions, suppress statements made by the defendant, and/or gain access to an arresting officer’s personnel file through what is known as a Pitchess motion.

An experienced defense attorney will begin considering pretrial challenges immediately upon reviewing a driver’s case. In most cases, a defense attorney will request any pretrial motion hearings during the defendant’s arraignment. The judge will then set the hearing for a future date. In felony cases, a motion to suppress may be made at the preliminary hearing only if defense counsel has personally served the prosecution with a written motion at least five court days before the hearing.

Typically, the issues an experienced DUI / DWI defense lawyer will consider when preparing pretrial motions are whether or not the arrest was lawful, whether the driver’s chemical test results were accurate, whether the driver was given a proper Miranda warning before making statements to police, whether the arresting officer has received prior complaints, and whether any previous drunk driving convictions within the past 10 years can be stricken, which will reduce any potential punishment.

When used judiciously, pretrial motions can be powerful ammunition in a defense attorney’s arsenal. By consulting with an attorney who specializes in DUI / DWI defense, a motorist accused of drunk driving can learn the best defense strategies and effectively fight the case.


More Information on Pretrial Motions

Motions to Suppress Statments

Demands for Discovery


Plea Bargaining a DWI Case in NY

A motorist facing a drunk driving charge in NY has an important decision to make – whether to take the case to trial or accept a plea bargain.

There are sometimes good reasons to take a case to court, but there can also be compelling reasons to accept a plea bargain. An experienced DUI / DWI criminal defense attorney can help an accused drunk driver decide the best course of action in each individual case.

Plea bargains are a good option when the prosecution has a particularly solid case and the chances of prevailing at trial are slim.

One option in a drunk driving case is to plead guilty, or no contest, to DUI with negotiated consequences. In some cases, a prosecutor may be willing to reduce the DUI from a felony to a misdemeanor, which is almost always a victory for the client. A savvy drunk driving defense lawyer may also be able to negotiate the consequences, which means he or she will work out a punishment that creates the least amount of disruption in a client’s life.


DWI Penalties and Consequences

All DWI arrests in New York require court ordered alcohol screening and license suspension pending trial.  DWI Penalties vary based upon whether it is your first offense, second offense or you have previously been convicted of a DWI.  While jail and prison penalties are not common for ordinary DWI offenses, all DWI offenses are subject to fines, a license suspension period, the drinking and driving program, and increased insurance costs.  Sentences may also include ignition interlock devices, additional alcohol education classes, or other sentencing alternatives.

Each DWI arrest will have different consequences based on the factors specific to your case.  First Offenses are punished differently than Second Offenses, Third Offenses, or Fourth Offenses.  Any DWI arrest can lead to a number of penalties, including:

  • Jail & Prison
  • Fines, Surcharges & Assessments
  • License Revocation & Suspension
  • Drinking Driver Program
  • Ignition Interlock Devices
  • Car Insurance Increases
  • Court Ordered Alcohol Screening
  • Automatic License Suspension

Felony DWI Charges

Driving Under the Influence (DUI) / Driving While Intoxicated (DWI) cases fall into three different categories – misdemeanors, felonies and “wobblers” (those offenses that can be charged either way, but usually are charged as felonies). How a drunk driving case is charged depends on many factors. A New York criminal defense attorney experienced in drunk driving defense can evaluate each case to determine how it is likely to be charged.

Most DUI / DWI cases, particularly first offenses, are charged as misdemeanors. However, under certain circumstances, drunk driving can be charged as a felony, which carries a harsher penalty. Criminal charges generally are defined by the potential punishment – felonies can be punished by a year or more in prison, while misdemeanors are punishable by up to a year in county jail.

Several factors can prompt prosecutors to file DUI / DWI cases as felonies rather than misdemeanors, including injuries, prior convictions, or drunk driving that results in death to a passenger, a person in another vehicle, or a bystander.

A drunk driving case that involves injury to someone other than the driver typically is charged as a felony. DUI / DWI with injury technically is a “wobbler” charge, meaning it can be charged either way, but most prosecutors pursue the charge that carries greater punishment. A skilled drunk driving defense attorney may be able to have a DUI / DWI with injury reduced to a misdemeanor through a plea bargain.

Prior convictions also can prompt prosecutors to file felony charges. Anyone arrested on a fourth DUI / DWI charge within 10 years likely will face a felony charge, even if no accident or injury occurred. The prior convictions must be specifically pleaded in the complaint and proven in court. Even prior DUI charges that were reduced may count in this calculation.

Drunk driving that causes the death of a passenger, another driver, or anyone else will nearly always be charged as a felony. The crime falls into one of three categories – vehicular homicide, manslaughter, or second-degree murder.

  • Vehicular homicide is charged when the death resulted from ordinary negligence. This is a “wobbler” and can be charged as either a misdemeanor or felony by the prosecutor.
  • Manslaughter with gross negligence is a felony that is charged when death was the result of criminal negligence. Criminal negligence in the context of drunk driving is generally defined as the knowledge that an individual’s actions were likely to result in death.
  • Second-degree murder is charged when the death occurs and the person who was drinking and driving acted with implied malice, or a conscious disregard for life. Second-degree murder is an unusual charge in a DUI / DWI case, because it is difficult to establish implied malice.

However, if a defendant has prior DUI / DWI convictions, they can be used to show that the individual knew the dangers of drunk driving. In certain jurisdictions including California, a defendant who pleads guilty or no contest to a drunk driving charge must admit to that knowledge either in court, or through a signed admission. This advisement, known as a “Watson warning,” may be used as evidence that the person acted with implied malice in a subsequent prosecution for second-degree murder.

Because felony drunk driving cases carry far harsher penalties than misdemeanors, it’s important to have excellent legal representation. A New York DUI / DWI defense attorney can evaluate the factors in each case to minimize potential consequences, and provide the best possible defense.

 


The DWI Investigation

Whether you decide to take your case to trial or take a plea is a very serious decision that should only be made after you have all the facts.  Most individuals simply want their case to settle so that they can move on with their lives, but making the wrong decision can follow you for years to come.  No matter what choice you make, be sure to have all the information possible.  At Perlmutter & McGuinness P.C. we thoroughly investigate every case.

Our DWI investigations include:

 


DWI and Related Offenses

Fighting a DWI charge can be difficult enough, but many times officers and prosecutors also include related charges, such as, Driving Under the Influence of Drugs (DUID), Endangering a Child (Leandra’s Law), Reckless Driving, Unlicensed Operation of a Motor Vehicle, or Fleeing a Police Officer.  In certain situations a DWI may result in Felony DWI Charges or Federal DWI Charges.  Additional charges will apply if a traffic accident or injury occurred.

Arrests for DWI often include other related charges.  These charges can include:

If the DWI arrest occurs as a result of a traffic accident, a prosecutor may charge:

  • Vehicular Assault
  • Vehicular Manslaughter
  • Criminal Negligent Homicide
  • Aggravated Vehicular Homicide
  • Leaving the Scene of an Accident

Under certain conditions a prosecutor may file Felony DWI charges, and, although it is incredibly rare, it is possible to face DWI charges in Federal Court.

 


The DWI Arrest: Where & How It Happens

DWI arrests generally occur in one of three scenarios: traffic stops, sobriety checkpoints, and traffic accidents.  Each scenario presents unique legal challenges that a skilled lawyer can investigate, and use to your benefit.

A Traffic Stop

A police officer pulls you over, approaches your car and places you under arrest.

A Checkpoint Stop

Police officers set up a checkpoint where they question each officer whether they have been drinking, order you to pull over, and place you under arrest.

A Traffic Accident

As the result of a traffic accident an officer places you under arrest either at the scene or at a later time.

Each of these situations presents their own legal issues.  An experienced attorney will be able to recognize the legal issues presented by your specific arrest, and how to best address them through the course of your case.

Getting arrested is never a pleasant experience, and can be especially jarring to an individual who has never had contact with the criminal justice system.  Often times the arrest and time in jail awaiting arraignment will be among the most punishing consequences of a DWI case.  Being arrested can feel humiliating and discussing it may cause embarrassment, but it is crucial to speak with an experienced attorney and tell him all details of your arrest.  Officer conduct that may have seemed unpleasant or unprofessional may actually be illegal.  An experienced attorney will know how to address these issues in the context of your criminal case, and may even be cause for a civil action.


Field Sobriety Tests

Field Sobriety Tests are designed to test an individual’s coordination and focus in order to determine intoxication or impairment.  The two categories for these tests are Standard Field Sobriety Test and Non-Standard Field Sobriety Tests.

One method used to evaluate whether an individual is intoxicated is to have the person perform a coordination test.  These tests are sometimes performed at the roadside or “in the field,” and are commonly referred to Field Sobriety Tests.  In NYC these tests are almost exclusively conducted inside the precinct, once you have already been placed under arrest.  These tests break down into two general categories:

“Standardized” Field Sobriety Tests

The National Highway Transit Safety Authority has identified three tests as the most reliable in determining Intoxication:

    1. One-Leg Stand Test
    2. Walk-and-Turn Test
    3. Gaze Nystagmus Test

It is important to note that studies have shown that these tests are only reliable predictors of intoxication 65-77% of the time.  That means that (at best) one out of every four times a person “fails” one of these tests, he is not actually intoxicated.  An experienced DWI attorney can explain your particular results.

“Non-Standardized” Field Sobriety Tests

Other less reliable tests that are used are known as “Non-Standardized” Field Sobriety Tests.  These tests include:

The most important thing to understand about these tests is that they are highly subjective— each person may view performance differently and draw a different conclusion.  In NYC, every test is video recorded, and the recording is produced during the course of discovery.  A experienced DWI attorney can show that what an officer believes to be a sign of intoxication is explained by other, innocent factors such as:

    • Physical Condition or Injury
    • Nervousness
    • Poor Communication between the Officer and the Individual

If you are unsure of whether to take any Field Sobriety Tests, you may refuse to take them.  Unlike a breath test refusal, there is no automatic penalties for this refusal.  It can, however, be used as evidence against you in a criminal trial.


Chemical Testing

At the time of arrest police may try to establish intoxication by conducting a chemical breath test, a roadside breath test, a blood test or a urine test.  The key to fighting any of these chemical tests is understanding the science behind the tests.  Adam Perlmutter is a licensed breath test operator and critically examines each test for scientific accuracy.

Search our NYPD BREATHALYZER TESTING RECORDS database

Use our database to see if the machine used to test you has a history of inaccuracy.

Contact us today for a free consultation: (646) 742-9800

Chemical testing is a major concern in all DWI arrests. Even though there are many challenges to the validity of blood, breath and urine tests in drunk driving cases, people are often under the mistaken idea that if the machine says someone is above the legal limit, they are guilty–period.

Fortunately for those who stand accused of DWI, a chemical test that indicates a driver was over the legal limit doesn’t mean an automatic conviction. However, a skilled drunk driving defense attorney will need to be well-versed in the various attacks on breath testing, on blood testing, and on urine testing for alcohol and drugs.

Most jurisdictions charge Driving Under the Influence in two ways:

  1. Violation of the “common law” drinking and driving laws
  2. Violation of the “per se” laws

Common law drunk driving is concerned with whether the driver is impaired by alcohol or drugs, and is unable to operate their car with the same caution as a sober person because they have consumed alcohol or drugs. Violation of the per se charge does not depend upon the person being affected by alcohol or drugs; instead, the per se charge relates to the blood or breath alcohol content (BAC) as being above the legal limit, now .08 percent in all 50 states.

Chemical testing of the blood, breath or urine to determine BAC is obviously at the heart of the per se charge, where the defendant is accused of driving above the legal limit. However, chemical testing for alcohol levels is also a critical inquiry in the traditional DUI / DWI case, where the driver’s condition as being impaired or not is the central question. This is because the forensic alcohol experts in most states will offer an opinion that all individuals are impaired once they are above a certain BAC. Some experts believe that alcohol level to be .10 percent, some .08 percent, and the most conservative will opine that all people are under the influence for DUI / DWI at a .05 percent BAC. Therefore, it is vital that a DUI / DWI defense lawyer be able to successfully address these issues to advance their client’s cause.

Chemical testing in DUI / DWI cases is of such importance that both the Department of Motor Vehicles (DMV) and criminal courts have imposed harsh sanctions where the driver accused of drinking and driving refuses to submit to chemical testing when lawfully requested by a peace officer following a DUI / DWI arrest. In California, for example, a refusal to test following a drunk driving arrest may result in a driver’s license suspension of one-year for a first offense DUI / DWI. This is in the DMV’s action, and is separate and apart from any action taken by the court. In the court case, refusal to test is a “special allegation” that, if proven, results in mandatory jail terms, lengthier alcohol education programs, and a jury instruction that allows jurors to consider the refusal to test as consciousness of guilt (if the case proceeds to a jury trial).

Chemical testing in drunk driving cases or DUI drug arrests involves the testing of bodily fluids – blood, breath, or urine. (There have been some efforts to develop a saliva test, but this has not yet been put into use.) In most states, when someone is accused of driving under the influence of alcohol, he or she has a right to take either a breath or a blood test. (In some states, it is the arresting officer that has the right to select which test the subject will take.) Where driving under the influence of drugs is suspected, the chemical test choices will usually include blood or urine. Generally, there is no right to a urine test in DUI / DWI cases relating to alcohol. Urine testing in drinking and driving cases has been deemed too unreliable to withstand courtroom challenges.

It’s important to note that while chemical testing may be accurate to determine blood or breath alcohol content (BAC) at the time of testing, it is not conclusive evidence of BAC at the time of driving. It is not illegal to be above the legal limit while in a police station; the crime is driving under the influence, or driving above the legal limit, not having a BAC above the legal limit at a later time. Because alcohol levels change over time, this is a critical point to understand.

Chemical testing for alcohol (DUI / DWI) or drugs (DUI drugs or driving under the influence of drugs) is not always accurate – far from it. There are challenges to roadside breath tests (also known as PAS or PBT tests), stationhouse breath tests, forensic blood tests, and forensic urine tests. Testing in DUI drugs cases is even more challenging than testing for alcohol levels in a drunk driving case. Drug tests involve searching for metabolites in the blood or urine, and not the drug itself. Plus, there are no “per se” limits in drug cases, and because of the time in which many drugs stay in the system, it is incredibly difficult to demonstrate that a person was impaired at the time of driving.

Although many drivers accused of drinking and driving may believe that a chemical test result with a BAC over .08 percent means a sure conviction, that’s not the case. However, it’s imperative to consult with a criminal defense attorney with experience fighting DUI / DWI cases. A skilled attorney can challenge the results of blood, breath, or urine tests, and plan a strategy to fight a drunk driving case.


DWI / DUI Refusal Cases

In NY you have a right to refuse a breath test, but that refusal may come with consequences.  After your refusal, you are entitled to DMV refusal hearing, where the DMV will determine whether refusal will result in a suspension of your license.  Having a skilled DWI lawyer greatly increases your chances of success at this hearing.

When a driver is arrested on suspicion of DUI / DWI, he or she is required to provide a sample of their blood or breath for testing for alcohol content, or a sample of blood or urine if they are suspected of driving under the influence of drugs (DUID). This is called the “implied consent” law. A driver found to have refused consent can face stiff consequences from the DMV or at a court trial.

There are some instances where an implied refusal might be excused or not considered a refusal. For example, if a person arrested for driving under the influence chooses to take a breath test, but then is unable to provide a sufficient sample of breath to allow for a reading, police officers often record this as a refusal, assuming the person is purposefully blocking the mouthpiece or not blowing hard enough. Often, the person may be sick or injured and unable to provide a sufficient sample, or the breath machine may be faulty. In this situation, if a police officer does not allow a person who chose a breath test to take a blood test instead, and records it as a refusal, this refusal may be excused.

Another situation where a refusal may be excused is when the person arrested for DUI / DWI is physically unable to either refuse or consent, or is in and out of consciousness. California courts have determined that a driver who is semiconscious should not be deemed to have refused due to a medical condition that is not related to alcohol use.

Also, at the DMV hearing to determine whether a driver’s license should be suspended, a motorist can launch a defense based on the fact that the police officer failed to issue a proper warning of the consequences of refusing to provide a blood or breath sample for testing.

Refusing a chemical test can lead to consequences at the DMV or during a criminal proceeding. However, an implied refusal, where police make the faulty assumption that the driver refused a chemical test, can often be successfully challenged by a DUI / DWI defense attorney

More information on:


Post DWI / DUI Conviction Relief

Before you take a plea in a DWI case in New York, it is important to understand that even a non-criminal plea will be on your record for the rest of your life.

Under certain, specific conditions, however, you may be able to withdraw your plea.  Your DWI lawyer can help you assess your case and see if this is an option.


Special Licenses

If you hold a specialized license such as a Commercial Driver’s License, a NYC TLC License or  you are a School Bus Operator, you may be subject to specialized penalties and requirements.  A DWI charge can put your entire livelihood in jeopardy, and you need an experienced attorney to advise you.


 

Out of State Drivers

If you hold a license from another state you will face special problems in Criminal Court and at the DMV.  Understanding the Interstate Driver’s License Compact is essential for understanding how being charged with a DWI will affect your case.

What happens to the motorist’s driving privileges in his or her own state depends on whether that state is a party to the Interstate Driver’s License Compact, an agreement between 45 states to communicate about driving-related crimes, including DUI / DWI. Only Wisconsin, Tennessee, Georgia, Massachusetts, and Michigan are not part of the Interstate Driver’s License Compact. All other states have agreed to notify other states of a DUI / DWI conviction and/or take against a person’s driving privilege.

A driver’s license is the property of the state that issued it. When a driver licensed in California is arrested for DUI / DWI within the state, the arresting officer will take the license and issue a temporary document that holds off an automatic license suspension for 30 days. After 30 days the driver’s license will be suspended.

Distinguishing between a driver’s license and a driving privilege makes it easier to understand why motorists can lose their driving privileges whether or not police seize out-of-state licenses. Possession of a driver’s license is only a presumption that the individual has a valid privilege to drive in the state. If the driver’s privilege is suspended, the license is useless.

Out-of-state drivers arrested for DUI / DWI in New York face enormous financial and personal consequences. A California criminal defense lawyer with experience fighting drunk driving cases can help minimize the consequences for out-of-state drivers arrested on suspicion of DUI / DWI.