Frequently Asked DWI Questions

The Dominion of Canada holds that any alcohol-related operating offense is an indictable offense. An individual who has been convicted of what would be an indictable offense in Canada may not enter Canada. Therefore, a New York motorist who has been convicted of any such operating offense will be barred from Canada for a mandatory 10-year period. While this discussion is largely devoted to alcohol-related operating offenses, it should be firmly borne in mind that the Canadian prohibitions discussed herein are applicable to a “serious offense” which includes any offense that would equate to that which is defined as a crime under the Canadian Criminal Code.

“Deemed rehabilitated” is a term of art that the attorney must be familiar with. In the event tha the crime or alcohol-related operating offense was committed more than 10 years prior to the time that the individual seeks to enter Canada, he or she will be “deemed rehabilitated.” However, one should not be led astray by the term “deemed.”

When an individual attempts to enter Canada, he or she bears the burden of proving that he or she has been “deemed” rehabilitated. The entrant should not blithely assume that merely

because more than 10 years have transpired since the event that he or she will be accepted by the immigration officials as “deemed rehabilitated.” Any individual falling into this category should arrive at the border with, minimally, a Certificate of Disposition, a copy of his or her FBI record, and proof that he or she has met all of the sentencing requirements imposed by the criminal court.

The foregoing applies to all offenses which were committed and which had all sentencing requirements completed prior to December 18, 2018.

In the event that the offense or all sentencing requirements were completed after December 18th, 2018, the conviction will no longer be “deemed rehabilitated.” Rehabilitation will require the individual to seek formal rehabilitation through Canadian authorities. In this regard, a Canadian law firm should be obtained to perform this function. 

While a firm determination has not been made as of this writing, all accounts indicate that Canadian Immigration authorities have decided to “grandfather” those who have received convictions and completed all necessary requirements by December 17th, 2018.

In the event that five or more years have transpired since the conviction and the completion of all requirements applicable to sentencing, the motorist can apply for a certificate of rehabilitation. Again, this should be done through a Canadian firm that routinely handles such matters. In the event that the individual seeking entry has more than one conviction for an offense that represents the equivalent of an offense found in the Canadian Criminal Code, he or she cannot be rehabilitated and he or she will be forever barred from entering the Dominion of Canada. Do not be led to believe that an arrest is not without consequence. In the event that the entrant has been arrested for an applicable offense but not convicted, he or she may still be denied entry inasmuch as an arrest for such an offense is considered by the Canadian authorities to be a “serious offense.” In the event that the entrant is in this position, he or she should accumulate as much information as possible relating to the offense such as a copy of the criminal section, the status of the matter in the American court, a copy of his or her FBI record demonstrating that no other “serious crimes” have occurred, as well as a letter from counsel fully and completely explaining the status of the matter in the American Court.

In the event that the entrant is denied entry, he or she will be given an “Allowed to Leave Certificate.” While this will permit the entrant to return to the United States, he or she will receive a UCI number and will be permanently banned from future entry. Should the entrant thereafter attempt to enter at any time, the Canadian authorities will initiate formal deportation proceedings which could result in incarceration.

Not after September 30, 2005. CDL holders will no longer be eligible for a conditional license with commercial privileges, even if a court issues a certificate of relief from civil disabilities - regardless of whether the traffic violation that resulted in the suspension or revocation of the license occurred in a personal (non-commercial) motor vehicle.

No. The CDL disqualification and revocation penalties are the same whether convicted of DWI or DWAI, even though DWAI is a non-criminal traffic infraction.

A court may in some cases issue a so-called "hardship privilege" to a CDL holder pending prosecution; however, such hardship privilege may not be used to operate any motor vehicle that requires CDL privileges. A pre-conviction conditional license (PCCL), which is issued by DMV in some cases thirty days after suspension pending prosecution, will not allow commercial privileges.

Yes, for most first offenders - but only if eligible for a pre-conviction conditional license (pre-trial) or a conditional license (post-trial) which require eligibility for enrollment in the drinking driver program.

Commercial driving privileges shall be revoked for a minimum one-year if the CDL holder commits a major traffic offense (MTO), including any of the following violations:

• Refusal to submit to a chemical test while operating any motor vehicle, personal or commercial;
• Conviction for leaving the scene of either a property damage or personal injury accident without reporting, while operating any motor vehicle, personal or commercial;
• Conviction for an alcohol or a driving while impaired by drugs (DWAID) offense while operating any motor vehicle, personal or commercial;
• Conviction for a felony committed within or outside of NYS involving the use of any motor vehicle, personal or commercial; or
• Conviction for operating a Commercial Motor Vehicle while his or her CDL was revoked, suspended, or canceled for prior violations, or if disqualified from operating a CMV, or conviction for causing a fatality through negligent operation of a CMV, including but not limited to, crimes of vehicular manslaughter or criminally negligent homicide.

That can depend on several factors, most importantly, why you lost it and whether you lost it before. Please recognize that this is an extremely complicated area. This is why you should choose an attorney who is fully familiar with all of these rules and how they apply to your case. For the first scenario, assume that you have been convicted of an alcohol related operating offense, such as Driving While Intoxicated (Vehicle and Traffic Law § 1192[3]), Driving While Intoxicated, per se (Vehicle and Traffic Law § 1192[3]), or Driving While Ability is Impaired. When you are sentenced your license will be revoked for six months (Driving While Intoxicated, Driving While Intoxicated, per se) or suspended for 90 days (Driving While Ability is Impaired). In these situations, you should be able to receive a conditional license provided you were not convicted of an alcohol related operating event or completed the New York IDP (Impaired Driving Program) within the past 5 years. With one exception that is discussed below, you must first

With one exception that is discussed below, you must first be convicted of an alcohol related operating offense. Again, with one exception, you must then enroll in the New York State DMV IDP (Impaired Driving Program). This is a multi-week course that meets one night a week. It is given by DMV recognized independent contractors for which there is a charge. If you enroll in and continue to participate in the IDP program, including any additional treatment which is mandated by the program, you will receive and continue to enjoy the conditional license.

Infrared technology is used in several popular breath testing machines, most notably the BAC DataMasterTM and ithe National Dreager AlcoTest  9510 use an Infrared detection is a process whereby an analysis is electronically conducted of the spectra of a beam of infrared radiation passed through the breath sample. We all know that for generations astronomers have been analyzing the chemical make-up of the stars by using a spectrometer to measure the various components of the spectrum generated by their light. This shared process is based upon the theoretically unassailable principle that no two chemical substances produce quite the same spectrum. Thus, the nature of a substance can be determined by analysis of the spectrum it produces which gives rise to the science of spectroscopy. When the goal of infrared spectroscopy is determination of the presence and quantity of alcohol in human breath, infrared radiation is the source of the radiation which is measured. Infrared radiation can be produced by matter, as when a hot iron gives off heat, and can be absorbed by matter, as when a piece of metal subjected to infrared radiation gets hot. Infrared radiation ranges in wavelength from .75 to 100 microns. A micron, symbolized "μm ", is equal in length to one thousandth of a meter. That same length is sometimes expressed as a micrometer, or "mm". Part of the region, the vibrational portion, encompassing wavelengths of from 2.5 to 15 microns, is of primary importance in spectroscopic analysis of alcohol. In attempting to understand what goes on in an infrared breath testing device, two concepts of analysis should be kept in mind, qualitative (going to the nature of the substance being analyzed) and the quantitative (going to the concentration of the substance within the medium in which it is present). One of the major problems with infrared techniques as presently employed in evidentiary breath testing is created by the fact that all commercially available machines do not trap a sample as did the old fashioned Breathalyzer. Instead the technique employed is to pass the breath through a sample chamber which is fitted with the infrared source and a detector which measures the energy which is not absorbed by the sample. This means that the machines must employ a computer model to determine when the sample being expelled into the machine is from the deep lung or alveolar region (see, "The Blood Breath Partition Ratio"). This system creates difficulty when so-called "mouth alcohol" contained in the breath sample mimics the image that the machine's internal computer believes is an alveolar sample.

Such pre-September 30, 2005 adjudications will generally have the effect under the prior law. Thus, any major traffic offense defined violation (in a non-commercial vehicle) prior to September 30, 2005 will not be deemed to be an MTO as a predicate for the purposes of second-offender MCSIA lifetime revocation. But if a CDL holder is convicted after September 30, 2005 of a MTO (including DWI or DWAI) committed before September 30, 2005, NYDMV will not issue a Conditional or Restricted Use license with commercial privileges, no matter how many times the CDL motorist says "ex post facto!"

Yes! Major traffic offense disqualifications and revocations may be based on out-of-state offenses. When applying for a CDL or CDL renewal, the motorist must disclose all states where the CDL holder was licensed within the past 10 years. Interstate reporting of most traffic offenses is mandated by MCSIA. Anyone authorized by law can obtain a copy of a CDL holder's driving record, including most employers and insurance companies. This will result in many CDL holders' loss of employment - even for a first offense, even if not convicted of a crime and despite proof of rehabilitation.

No. A CDL holder who is suspended for failure to pay child support will not be issued a Restricted Use License (RUL) with commercial privileges. This shows that the law is not purely an effort to keep the highways safe; but in part, a way of enforcing a Federal agenda to enforce support enforcement and increase federal revenue. Denial of a RUL is a way of furthering a Federal agenda of revenue enforcement for child support.

Unless a state enacts legislation enabling MCSIA, it risks loss of federal highway funds. If New York had not enacted MCSIA by September 30, 2005, it would have risked the loss of millions of dollars in federal highway funds. As you can imagine, there wasn't much debate in the legislature about the salutary merits of enacting legislation to enable MCSIA.

That can depend on several factors, most importantly, why you lost it and whether you lost it before. Please recognize that this is an extremely complicated area. This is why you should choose an attorney who is fully familiar with all of these rules and how they apply to your case. For the first scenario, assume that you have been convicted of an alcohol related operating offense, such as Driving While Intoxicated (Vehicle and Traffic Law § 1192[3]), Driving While Intoxicated, per se (Vehicle and Traffic Law § 1192[3]), or Driving While Ability is Impaired. When you are sentenced your license will be revoked for six months (Driving While Intoxicated, Driving While Intoxicated, per se) or suspended for 90 days (Driving While Ability is Impaired). In these situations, you should be able to receive a conditional license provided you were not convicted of an alcohol related operating event within the past 5 years.

It is a special license that permits you among other things, to drive to and from work and during working hours if required for your job, to and from day care for your children, to and from credit bearing scholastic activities, and to and from medical treatment.

No. There are many exceptions and prohibitions, not all of which will be discussed here. That is why you must choose an attorney who fully understands these rules and regulations.

How do I become eligible?

With one exception that is discussed below, you must first be convicted of an alcohol related operating offense. Again, with one exception, you must then enroll in the New York State DMV Drinking Driver Program (DDP). This is a multi-week course that meets one night a week. It is given by DMV recognized independent contractors for which there is a charge. If you enroll in and continue to participate in the DDP program, including any additional treatment which is mandated by the program, you will receive and continue to enjoy the conditional license.

No. Although an attorney experienced in alcohol related operating offenses may be able to defeat the revocation or temporarily restore your license (see, choose an attorney), there is no conditional license for the refusal. If, however, you are convicted of an alcohol related operating offense and your revocation for refusing to submit is still in effect and you are eligible to receive a conditional license, you may be able to obtain such a license.

No. If you have been convicted of an alcohol related operating offense within 5 years of your arrest, or have had your license revoked for refusing to submit to a blood, breath or urine test within 5 years of your arrest, you cannot obtain a conditional license.

Infrared technology is used in several popular breath testing machines, most notably the BAC DataMasterTM and ithe National Dreager AlcoTest 7110 mk III use an Infrared detection is a process whereby an analysis is electronically conducted of the spectra of a beam of infrared radiation passed through the breath sample. We all know that for generations astronomers have been analyzing the chemical make-up of the stars by using a spectrometer to measure the various components of the spectrum generated by their light. This shared process is based upon the theoretically unassailable principle that no two chemical substances produce quite the same spectrum. Thus, the nature of a substance can be determined by analysis of the spectrum it produces which gives rise to the science of spectroscopy.

When the goal of infrared spectroscopy is determination of the presence and quantity of alcohol in human breath, infrared radiation is the source of the radiation which is measured. Infrared radiation can be produced by matter, as when a hot iron gives off heat, and can be absorbed by matter, as when a piece of metal subjected to infrared radiation gets hot. Infrared radiation ranges in wavelength from .75 to 100 microns. A micron, symbolized "m", is equal in length to one thousandth of a meter. That same length is sometimes expressed as a micrometer, or "mm". Part of the region, the vibrational portion, encompassing wavelengths of from 2.5 to 15 microns, is of primary importance in spectroscopic analysis of alcohol. In attempting to understand what goes on in an infrared breath testing device, two concepts of analysis should be kept in mind, qualitative (going to the nature of the substance being analyzed) and the quantitative (going to the concentration of the substance within the medium in which it is present).

Considering, first, the qualitative: When infrared radiation is directed at a compound such as ethyl alcohol, the molecules in that compound will absorb some of that radiation. This occurs when the covalent bonds at certain "signature" wavelengths are activated by the radiation.  What those wavelengths are depends upon the compound. The pattern of infrared absorption can, therefore, be used for identifying molecules just as fingerprints can be used for identifying humans. Although on the surface it would seem quite a simple matter to identify a material based upon this technique, there's a hitch. More than one compound may absorb radiation at one or more of the same wavelengths. The only way to absolutely identify a compound is to identify all of its wavelengths. Our intended target, ethyl alcohol, has been proven to absorb radiation at major peaks of 3.39, 3.48, 7.25, 9.18, 9.50, and 11.5 microns, as well as some absorption at about a micron on either side of the peak. It also absorbs some, but less, radiation at secondary or shoulder bands, such as 3.42 microns. No other compound absorbs radiation at exactly those peaks and no others. Development of a commercially viable breath testing device to measure all of the frequencies at which alcohol absorbs would unquestionably be cost prohibitive. Therefore, each of the manufacturers has taken a different course whereby one major frequency is measured and other substances, such as acetone, which are likely to be found at or near the chosen frequency are either measured and subtracted or are electronically filtered out.

Since it is legal to operate a motor vehicle with some alcohol present in the blood, it is also necessary to make a quantitative determination of the amount of alcohol present. This side of any spectrometer therefore uses a principle known as Beer's Law (sometimes called the Beer-Lambert Law or the Bouguer-Beer Law). Beer's Law provides that the quantity of radiation absorbed by a substance (in this case alcohol) dissolved in a non-absorbing solvent (deep lung air) is directly proportional to the concentration of the substance and the path of the radiation through the solution. Beer's Law says that if one knows the amount of radiation absorbed, one can calculate the concentration of the substance responsible for the absorption.

Maybe, and maybe not. Some researchers caution that the basic premise, the Beer-Lambert formula, is not predictive of the results of quantitative measurements, particularly when such measurements are anticipated over a wide range of sample concentrations.

One of the major problems with infrared techniques as presently employed in evidentiary breath testing is created by the fact that all commercially available machines do not trap a sample as does the Breathalyzer. Instead the technique employed is to pass the breath through a sample chamber which is fitted with the infrared source and a detector which measures the energy which is not absorbed by the sample.  This means that the machines must employ a computer model to determine when the sample being expelled into the machine is from the deep lung or alveolar region (see, "The Blood Breath Partition Ratio").  This system creates difficulty when so-called "mouth alcohol" contained in the breath sample mimics the image that the machine's internal computer believes is an alveolar sample.

A misconception that is held by many, including many lawyers who represent client's charged with DWI, is that these machines contain "mouth alcohol detectors."  They do not.  The system employed in the DataMaster, detailed below, is to measure the rate of cooling across a thermistor. This is known as a slope detector.   A too rapid rate of cooling will be interpreted by the device as "mouth alcohol" and the results will be reported as such.  Even assuming that the slope detector system is valid, it is nonetheless possible for mouth alcohol to be "layered" atop alcohol contained in the alveolar sample as shown in the graph below.  This will result in a cumulative mouth alcohol and alveolar sample and the slope detection system will be unable to differentiate between the two.  The end product of such a situation is that reported BAC of the subject will actually exceed the true BAC by as much as 100%.  On numerous occasions utilizing a DataMaster which our firm owns, we have substantiated that this problem can arise.

Manufactured by National Dreager at its Durango, Colorado plant, without a doubt, the AlcoTest 9510 is the newest commercially viable breath testing device available. By all appearances the device is physically unimposing, measuring 15.8" long x 5.1" height x 10.4" depth. It weighs 16.5 pounds which gives it the size and "heft" of an old laptop computer. The device has a metal case coated in what appears to be a leatherette type of rubber or plastic. It has a hinged safety cover that is generally removed when in use and two latches to keep it in place when it is not. The top surface is dominated by an oval shaped well to house the thick black PVC sample hose. The hose is heated and contains a socket whereby the operator affixes a round white disposable plastic mouthpiece which also doubles as a saliva and particulate trap. Also mounted atop the device is a forty character alpha-numeric readout which describes, in a single line of text, the operation being performed, alerts the operator to perform required actions, conveys errormessages and expresses the result in a percent of weight vs. volume. Likewise positioned on thetop of the instrument is a small dot matrix printer which prints to a strip of paper roughly akin toa cash register tape.

Technically exciting, the AlcoTest 9510 conducts not one but two tests. Further, each of the tests are conducted through two different modalities. The first test is by means of infrared spectrometry at the 9.5 m range. The second utilizes what Dreager calls "breakthrough" fuel cell technology. It is important to point out that utilization of this device will not inaugurate the "two test" system which is part of the regime of many states. The second, or fuel cell test, is conducted upon the same sample that was previously measured by the infrared detection system. This decision, as we see it, is a two edged sword. From one standpoint agreement of the two tests undoubtedly goes far to convince the trier of fact that the test result was an accurate representation of the motorist's BAC at the time he or she was tested. On the other hand, this system does little to dispel arguments that the arrestee's BAC had risen since the time of operation.

In use, the subject blows a steady and moderately long breath into the machine. Based upon personal observation and comparison, the breath is shorter than required for the DataMaster DMT and much shorter, hence easier to blow than an early Intoxilyzer DMT.It appears that the device utilizes a pressure sensor to determine the presence of deep lung air.While we cannot be 100 per cent certain at this preliminary stage, our best guess is that the sensor monitors the flow of air and upon achieving a peak moving toward a declination in pressure the optical system is activated. The sample is passed directly into a cuvette which the manufacturer describes as a "totally encapsulated optical bench to ensure no dust buildup on [the] infrared filter or any optics." A short optical chamber, hence smaller breath, is enabled by meansof two gold plated parabolic mirrors that are placed at either end of the optical chamber. Thus, although the volume of the sample chamber is a mere 70 cc (10 cc smaller than theIntoxilyzer), the length is expanded seven times due to the arrangement of the mirrors and the placement of the infrared source and sensor. The infrared detector is fitted with a filter centered at 9.5 microns with a half bandwidth of 0.50 microns.

Selection of the 9.5 micron range, the absorbing frequency of the C-O bond of ethanol is, in the mind of Dreager, key to the improved performance of the device. In A New testing Device Using the 9.5 mm Ethanol Absorption, Dreager's B. Moreth noted that "a large variety of organic compounds are infrared active [in the 3.4 mm range] and the presence of a substance like toluene or methane would influence the reading on these multi-wavelength instruments without the possibility of correction." Theoretically therefore, by selecting this range, Dreager believes that it has circumvented these problems.

What makes the AlcoTest 9510 truly unique is the addition of an electro-chemical fuel cell to conduct a separate test with a totally unrelated technology. Well-known from the space program where fuel cell technology has been routinely used to generate electrical power since the mid 1960's, an electro-chemical fuel cell is an arrangement whereby a gas is passed between two electrodes through an electrolyte. Given the proper conditions, the passage of this gas will create an electrical current. Based upon a review of the manufacturer's literature, it is believed that in the AlcoTest  9510 a tube, coated on both sides with finely divided platinum, contains a porous layer impregnated with an acetic electrolyte solution. The passage of a gas containing ethanol will cause the a minute current to flow, which current is measured and translated into an alcohol reading.

When the subject blows into the device, the sample passes into a triangular tri-fold sample chamber which has been made continuous through the use of a mirror at the point where the chamber bends. This gives the chamber a continuous length of 1.1 meters notwithstanding its relatively small sample size. Controlled entirely by its software "brain," the DataMaster DMT will first search and measure the interference present in the alcohol or 3.44 micron range. It accomplishes this by automatically moving this filter into position and measuring the decrease in transmission present in this range. Provided at least 1.5 liters have been delivered, when a the flow rate drops below 3.8 liters per minute and the realtime BAC curve is less than or equal to .001, the DataMaster DMTwill take a snapshot if the sample and report the analysis as the blood alcohol content of the subject utilizing a 2100 to 1 Blood Breath Partition Ratio. As noted above, both the minimum flow rate and the total amount of breath delivered are measured by the rate of cooling across a thermistor. After completing its alcohol measurement, the machine removes the alcohol filter and substitutes, in its place, the 3.37micron or acetone filter. The device then measures the absorption in this band and adjusts the alcohol determination by the results of the second test. It is not known what calculations are employed in making these determinations or whether different versions exist. Upon completion of the test, a self contained printer will provide multiple copies of the evidence ticket made in each test.

The Intoxilyzer 5000 featured an easy-to-fill 80 cubic centimeter chamber which virtually eliminated problems of obtaining an adequate sample. The chamber is nickel plated and is
heated to 45 degrees celsius. A quartx iodide lamp is used as the light source. Analysis is conducted at at 3.80, 3.40, 3.47, 3.52 and 3.36 microns and 3.80μm. The latter frequency, however, is not an analytical one; its sole purpose is to act as an internal check on the machine. Interference, generally acetone, is detected as follows. The Intoxilyzer 5000 actually measures the level of acetone and reduces the final reading by that amount. Should high levels of acetone be found, the machine will not be disabled as it was in the Intoxilyzer 4011AS, but will alert the operator to the unusually high presence. The difficulty with this approach is that if the warning system fails, the erroneous reading will be taken as alcohol.

At the heart of the Model 5000 is a programmable microprocessing chip. Virtually all aspects of the device's control have been turned over to the discretion of this chip. It determines, for instance, whether or not the breath is of adequate quality to be considered alveolar, and it also performs the calculations of the slope detector which was carried over from the earlier 4011AS. The difficulty with the use of a component of this kind is that counsel cannot always be sure that the computerized criteria conforms with the requirements of his or her jurisdiction. Although most states and the Federal Approved Product List set forth that the Intoxilyzer 5000 is an “approved” device, there is no telling just what software version must be loaded to meet the criteria for approval. Moreover, direct and cross-examination become quite difficult unless there is a means of verifying the software version employed. PDF?Image 1 within document in PDF format.

Following the 5000, CMI brought out the latest addition to the Intoxilyzer family, the Intoxilyzer 8000. It is unique in that it features analysis at both the three and nine micron range. As noted above, the Intoxilyzer 5000 had analyzes at 3.80, 3.40, 3.47, 3.52 and 3.36 microns. The 8000 performs infrared analysis at a reported “3 and 9 microns,”1 although the “9 micron” reading reported by CMI is undoubtedly the 9.5 micron analysis originally found in the competing Dreager AlcoTest 7110 mkIII (IR-EC). The addition of the 9.5 micron analysis was well advised. Dreager, in an early internal technical paper, called for the addition of 9.5 micron analysis to combat the well documented infrared difficulty with acetone.The light source is electronically pulsed as opposed to the use of a mechanical chopper in the 5000.

Another interesting addition seen in the Intoxilyzer 8000 is the use of what the manufacture reports as “Intel Compatible x86 processor.” Reportedly, the processor is running in the 30 MHz range. Note that the information sheet for the product does not say that the machine is running an Intel processor, only an Intel compatible processor. While the use of a this chip may represent a massive improvement in the processing capability of the device over the 5000, without knowing the precise chip it does not necessarily mean that the machine is “state of the art” as known in computing circles. X86 processors are not a new development and commenced in 1978 with the creation of the 8086.

In appearance, the Intoxilyzer 8000 resembles a large grey lunch box measuring 15 inches by 10.5 inches by 8.4 inches. It weighs 17 pounds and can operate on AC or automobile power, making it usable for mobile applications. It contains a built-in thermal printer which prints out an evidence ticket which resembles a credit card receipt.

Intoxication, for the purpose of Vehicle and Traffic Law § 1192(3), was defined by New York's highest court in a case called People v. Cruz. It is a condition where the motorist lacks the necessary physical and mental skills to operate a motor vehicle as a reasonable and prudent driver.

In New York, there are two different charges that pertain to Driving While Intoxicated (DWI). The first is called Driving While Intoxicated, per se, and is set out in Vehicle and Traffic Law § 1192(2). This section makes it illegal to drive a motor vehicle with .08% or more of alcohol in the bloodstream. It makes no difference under this charge whether the motorist appears intoxicated. All that counts is the amount of alcohol in the blood.

The second is Driving While Intoxicated and is often called "common law DWI." Created by Vehicle and Traffic Law § 1192(3), it does not require a blood or breath test. All that is required is evidence, generally the opinion of the arresting police officer, that the motorist was intoxicated.

While the decision may seem simple on its face, it is not. Whether to take a test is a complicated legal decision that should be made by a knowledgeable attorney.

What if the arrest occurs late at night, how can an attorney make the decision?

An attorney who routinely handles these cases recognizes that the late night phone call is part of the job. Such an individual has many years experience in quickly assisting motorists at all hours of the night. At Fiandach and Fiandach, our answering serve will put you in direct contact with Mr. Fiandach.

New York law gives all motorists the qualified right to call and consult with a lawyer before deciding to take or refuse a test.

What is a "qualified right"?

It essentially means that you have a right to call and speak with an attorney, but the police need not wait for the attorney's arrival.

Definitely not. You are entirely free to choose an attorney after your release when you can make a careful investigation as to his or her credentials.

New York law is quite clear that a person who has seen intoxicated persons in the past, on numerous occasions, can give his or her opinion as to whether a person appears to be intoxicated. Thus, the police officer can (and will) give such an opinion.

Is there any other evidence aside from the police officer’s opinion?

Yes,Generally a police officer will testify that the individual had a strong smell of alcohol on his or her breath, that the motorist's speech was slurred, that the motorist had blood shot and watery eyes, that the motorist's complexion was "flushed," and that he or she swayed when walking.

Can't these signs be caused by other factors?

Certainly, and a competent DWI specialist (see, choosing a lawyer) can generally make the arresting officer admit that the smell of alcohol on one's breath is no indication of intoxication; that blood shot eyes can be caused by environmental factors such as a smoke filled room and that a flushed complexion can be the result of the nervousness that surrounds even the most routine traffic stop.

That leaves sway and slurred speech, aren't these positive signs?

Not always, but that is where the choice of an attorney can be all telling. An expert at these cases can show a jury that the officer either did not hear slurring or that he or she came to a snap decision as to the manner in which the motorist spoke. The same goes for sway.

No. New York has also instituted suspension pending prosecution for motorists who score .08 or greater.

So if the result of my test is say .14, does that mean my license is gone?

Maybe, but a specialist may be able to prevent that situation. In this regard Ed Fiandach sued the State of New York shortly after the law went into affect and litigated the constitutionality and operation of this statute through the United States Supreme Court. Although the law was ruled constitutional, the decision in Pringle v. Wolf, significantly weakened the affect of the law and made it much harder to take a license. An expert, such as Mr. Fiandach, knows how to use this case to the motorist’s benefit.

Probably. Under New York's implied consent law, a motorist agrees to take a test when asked. The punishment for the first refusal to comply is a $500.00 civil penalty and a one year revocation of a license.

Can a lawyer do anything with this penalty?

Maybe, but again, that is why you must seek the services of a specialist who thoroughly understands these rules and each and every exception (see, choosing a lawyer).