DWI FAQ's
WHAT EXACTLY DOES "INTOXICATED" MEAN?
A person is intoxicated when he or she has lost "normal" use of either mental or physical faculties because of an alcoholic beverage, drug, controlled substance, or any combination. A person is also intoxicated if he or she has an blood alcohol concentration(BAC) of .08 or more.
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IS IT .08 OR MORE WHEN I DRIVE, .08 OR MORE AT THE TIME I'M TESTED, OR ARE BOTH CASES NECESSARY TO BE ACCUSED OF DWI?
The driver must have an alcohol concentration of .08 at the time of driving. It is not a crime to have a .08 BAC before or after driving, and sometimes determining the BAC of a driver at the time of driving can present a problem for the prosecution and defense. Tests are usually administered 15-45 minutes after the motorist was driving, and without knowing the amount of alcohol consumed and the time period it was consumed in, it can be nearly impossible to determine if the motorist's BAC was at least .08 while driving.
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WHAT DO POLICE OFFICERS LOOK FOR WHEN LOOKING FOR DRUNK DRIVERS ON THE HIGHWAY?
The following list is based upon research conducted by the Nation Highway Traffic Administration.
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Turning with a wide radius
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Straddling the center of the lane marker
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"appearing to be drunk"
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almost striking an object or vehicle
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weaving
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swerving
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speed is 10 mph, or more, below posted limit.
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stopping without cause in a traffic lane
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following too closely
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drifting
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braking erratically
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driving in opposing or crossing traffic
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signaling inconsistent with driving actions
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slow response to traffic signals
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headlights off
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accelerating or decelerating rapidly
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WHAT IF THE REASON I WAS STOPPED WAS NOT DWI RELATED?
Most police officers make a traffic stop for registration compliance, parking violations, cracked windshield, inoperative taillight or headlight, weaving, speeding, no turn signal, etc.
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WHAT IS THE OFFICER LOOKING FOR AFTER I'M STOPPED?
Traditional signs of intoxication taught at police academies are as follows:
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flushed face
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red, watery, glassy, and/or bloodshot eyes
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odor of alcohol on breath
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slurred speech
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fumbling with wallet trying to get license
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failure to comprehend the officers' questions
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staggering when exiting vehicle
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swaying/instability on feet
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leaning on car for support
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combative, argumentative, jovial or other "inappropriate attitude"
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soiled, rumpled, disorderly clothing
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stumbling while walking
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disorientation as to time and place
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inability to follow directions
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WHAT KIND OF EVIDENCE DOES AN OFFICER NEED TO ARREST A MOTORIST SUSPECTED OF DRUNK DRIVING?
There are generally three types of evidence an officer may consider in the investigation:
The police officers, or any witness for that matter, are permitted to offer their opinion that you were intoxicated at the time of your arrest. The more formal "coordination tests" are often administered at the precinct or roadside. These involve touching your nose while holding your head back and closing your eyes, walking a straight line, standing on one leg, and perhaps being asked to recite the alphabet. Under New York State DWI laws, there is no requirement that you take these tests, but in some cases, where you are not intoxicated, you may wish to do so. Of coarse, if you consumed alcohol and are likely to fail the tests, you should again respectfully request to speak to your attorney and/or refuse to take these tests as well. Keep in mind that the coordination tests are typically videotaped and can be used either as evidence against you or on your behalf. Also remember that typically, people are more inebriated that they care to think, so use common sense and be honest with yourself.
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WHAT HAPPENS IF I REFUSE TO TAKE A BREATH TEST?
Refusing to take a breath test is not a crime under New York State DWI laws, but there are certain consequences you should know about. Refusing to take a breath test can very well result in losing your license or privilege to drive in New York State for six months regardless of whether you are found guilty or not guilty on the DWI charge. The fact that you refuse to take a breath test is something the prosecutor can bring up in your DWI case. For example the DA can argue that you would not have refused to take the test if you were sober. Obviously, you can be arrested for DWI regardless of whether you take the test or not, but the evidence against you is usually still not as powerful as a breath test result that shows you are over the legal limit. Being over the legal limit of .08% alone is a DWI crime regardless of whether you are actually intoxicated. So, if you think you are "sober" and still blow over the legal limit, you can still be found guilty of DWI.
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HOW ACCURATE ARE THE METHODS USED TO DETERMINE ALCOHOL CONCENTRATION?
Urine testing is the least reliable and is probably the least used method of testing BAC. Breath testing is commonly used by police because or its convenience. There are debates among scientists regarding the accuracy of breath tests. Blood testing is the most accurate method of testing BAC, but is rarely used by police because it is expensive and inconvenient. Blood samples, like urine samples, can be retested to validate the initial test result.
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HOW SOON AFTER MY ARREST SHOULD I CONSULT WITH AN ATTORNEY?
How soon you are permitted to speak with your attorney depends on when the police are able to let you make that call. If you are being arrested on the street or roadside, chances are you will not be allowed to call your attorney until you get to the precinct. Even there, you may have to wait for the officer to give you access to a phone or let you use your own phone, which may be taken from you at the scene. Once you are permitted to speak with your attorney, you should give honest answers to your attorney's questions. Don't pretend to be sober if you aren't and don't understate the volume of alcohol you have consumed. Unless you give him the right input data, your attorney can't come up with the right solutions for you. Be careful when speaking to him/her and remember that others might be listening. While your call cannot be monitored because of your attorney-client privilege, if you speak loudly and someone just happens to hear you, it might be incriminating evidence that can be used against you. Your attorney should be able to advise you as to what the approximate outcome of a breath test would be if you truthfully tell him/her how much you drank, over what period of time you drank and your weight. This would be important information for you and for him/her. Your attorney will also be able to tell you whether to take the coordination tests. He/She would certainly tell you not to answer the officers questions.
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HOW LONG WILL A DWI ARREST STAY ON MY RECORD?
If you are convicted of a DWI, it will be on your record for life. Although expunction law allows for destruction of arrest records if certain conditions are met, records relating to driver's license suspensions are not able to be expunged.
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WILL A DWI ARREST AFFECT MY INSURANCE RATES?
If you are convicted of a DWI your insurance rates will very likely increase.
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