What would you do if police pulled you over on the way home from a party? It’s after midnight. You’ve had 3 tequila shots in 2 hrs or less.

There are so many variables for you to process in this very common DWI scenario, especially now, in the wake of much stiffer penalties and plea policies being implemented in New York State. Here are a few concepts to consider:

The majority of District Attorney’s Offices in NY have conjured up stiffer plea policies and won’t offer reduced pleas from DWI to DWAI, in cases where a driver is charged with having a BAC greater than .13% or having refused to take a breath, blood or urine test.

This changes the whole paradigm:

If you refuse to take the test, your license will be revoked (at least until the DMV hearing on the competency of the Police administration of the refusal warnings and your understanding of them) and you will NOT be offered the reduction to DWAI.  Therefore, your license will be in serious jeopardy.

On the other hand, given the above facts (3 shots of tequila in two (2) hours and your caught driving) your BAC will likely be hovering just around the arbitrarily chosen policy number of .13%, so that you may not be offered the reduction anyway (I’m not suggesting you trust the accuracy of breath test machines – which is dubious at best and can be quite expensive to explore at trial).   In the past, we have been schooled that as a rule, your body metabolizes about one ounce of alcohol per hour.  So, two (2) one-ounce drinks at the back end of two (2) hours should yield a 0.0% BAC result.  We are just not seeing Breath test results consistent with this calculation.

Aggravated DWI – if your BAC comes back at .18% or above, you will definitely not be offered the reduction to DWAI and you will likely not be beating the machine at trial.

Weighing the decision – if your BAC is over the legal limit of .08% but under the predetermined policy number (.13% in Westchester County), you will be offered the opportunity to plead to the violation of DWAI.  If you do “take the plea”, you will likely never miss a day of driving.  You will likely be granted a twenty (20) day stay of the ninety (90) day suspension when you’re sentenced, which will allow you to register for the DDP course at the DMV.  Right then and there, the DMV will grant you a conditional license to get you to work/school/medical and back.

On the other hand, if you don’t plead to the reduction, or are never offered the opportunity, you will either be in a fight against the machine or be forced to plead to the traffic misdemeanor of DWI.  Many judges and prosecutors are literally (and baselessly) in awe of the breath machines, despite the flaws in machine’s chemical underpinnings.  Remember, a conviction for DWI comes with a state mandated Ignition Interlock Device, which is a total buzz kill for obvious reasons.   In addition to this and other stiffer penalties, your DWI conviction today will lead to your being charged with a felony DWI, should you repeat your mistake within the ten (10) years post conviction.

The DWAI plea keeps you driving.  It should be your stand up double, with the home run obviously being a full acquittal.

The result – the new policies will serve to force many more DWI trials over the next few years:

  • DWI Refusals – as many more impaired and/or intoxicated drivers become educated about the new penalties and policies, the rate of DWI refusals will increase and therefore the number of DWI refusal trials will jump correspondingly.  Many trial lawyers will be forced to attack the refusal at a trial, simply to “earn” the DWAI result.  We do this all the time at the Law offices of Richard A. Portale.  The new policies have created more work under the same facts.
  • Breath test machines – the new plea policies will foster a new wave of challenges to the underpinnings of the breath test instruments – out of necessity.  We have tested the DWI Breath test instruments at trial and won.

Stiffer penalties and plea policies have increased the stakes for drivers, who will undoubtedly respond with more fight.  At the law offices of Richard A. Portale, we have successfully handled as many or more DWI cases as anyone around.  Yet, we have not lost a trial for DWI in three (3) years.

Advice: given the new penalties and plea policies we have seen crop up recently, our advice has been as follows:

Be honest with yourself. If you know that you have had two (2) drinks or less in the preceding two (2) hours or more, take the test.   Your BAC will most likely be very low.  You will be offered a reduced plea and never miss a beat.  Otherwise, refuse.  Refuse everything.  No tests, speak only enough to get your self home or in front of a judge.  Your license will be revoked once you see the judge, but you can “earn” it back after trial, because you will have precluded the police from gathering evidence of intoxication to present against you at that trial.  Call us.  We will walk you down this extremely treacherous path and guide you to safety.  Whether we are in for a fight or we are able to amicably resolve your case without any bloodshed, we will make the otherwise horrific journey as painless as possible for you.

*We are only pointing out some of the important factors to consider when facing a serious DWI charge and the decision of whether to take the test.  You should know the law before making your decision.  Based on your personal experience or position in life, you may have other factors that come into play.  No two situations are identical and ultimately, your must make your own choices.  Good luck – be smart, be safe, and don’t drive while intoxicated and you won’t ever have to worry!