White Plains DWAI Lawyer
When You Have Nothing to Lose &Everything to Gain by Fighting – NY DWAI Defense Lawyers
Although “drunk driving” related criminal offenses are aggressively prosecuted by law enforcement officers and prosecutors in all states, unique characteristics of New York law make challenging such offenses more complicated. In most states, drivers are subject to the harsh consequences of a DWI/DUI conviction if they have a blood alcohol concentration (BAC) of .08 percent or above, or their ability to drive is actually impaired. You may be arrested for driving while ability impaired (DWAI) with a BAC under .08 percent if there is sufficient evidence that your physical or mental ability to drive is adversely impacted by alcohol. (DWAI Drugs is beyond the scope of this page).
Understanding the Difference between DWI and DWAI in New York
White Plains, New York DWI
If you are stopped by a police officer, you can be arrested for DWI under one of two circumstances. When you submit to chemical testing through breath or blood testing, you may be arrested for DWI if your BAC level is .08 percent or above under §1192(2) (referred to as “DWI Per Se”). Even if you do not participate in BAC testing, you can still be prosecuted for DWI if your driving ability is actually impaired under §1192(3) (referred to as “Common Law DWI”). This impairment is usually based on evidence that may include some or all of the following:
- Traffic violations or other “erratic driving” prior to you being pulled over
- Standardized Field sobriety tests
- Physical manifestations of intoxication (e.g. bloodshot eyes, odor or alcohol, slurred speech &lack of coordination)
- Incriminating statements
If the prosecutor is able to prove either a violation of §1192(2) or §1192(3), you can be convicted of a misdemeanor for a first offense of DWI. Penalties for a first time offense of DWI in New York may include:
- Up to a year in jail
- Fine from $500-$1000
- Minimum six month revocation of your driver’s license
- Required participation in a driver responsibility assessment for three years ($250 fee per year)
- Probation (3 years)
- Possible six month revocation of your vehicle registration
- Mandatory installation of an ignition interlock device for a minimum of six months
- Attendance at a Victim Impact Panel
- Other fees and assessments
White Plains, New York DWAI
While a first time offense DWAI is not technically a criminal offense (i.e. misdemeanor or felony), the consequences can have a dramatic impact on your life. DWAI is considered a traffic infraction, but the violation still results in harsh consequences even for a first time offender. A first conviction offense of DWAI can expose you to the following penalties:
- Maximum 15 days in county jail
- Ninety (90) day driver’s license suspension (more serious penalties for minors and commercial drivers)
- Fine ranging from $300 to $500
- Victim Impact Panel and driver responsibility assessment (See DWI penalties above)
- Other fees and costs
DWAI is essentially a hybrid version of the two forms of DWI for those with a BAC of .05 percent or above but below .08 percent. The DWAI infraction does not have a “per se” version of the offense. Even if a driver has a BAC of .05 percent to .07 percent, the prosecutor must still prove that a motorist’s actual driving ability was impaired.
DWAI Cases Provide an Increased Probability of a Driver Prevailing at Trial
Since cases involving per se violations are easier to prove, an experienced DWAI defense attorney can prevail more frequently at trial in these cases. When you are charged with DWI with a BAC that is significantly higher than the legal limit, such factual circumstances can make obtaining a dismissal or acquittal complicated. The prosecutor essentially only needs to establish that the stop and arrest was based on sufficient evidence to be lawful and that the BAC breath test results were accurate.
Challenging Breath Testing in DWAI Cases
However, BAC breath test results are more vulnerable to attack if the results are close to the legal threshold necessary to constitute a violation. Because you will only be charged with DWAI if your BAC is between .05 and .07 percent, you will always have a BAC level closer to the legal threshold for the offense. This increases the probability of successfully challenging breath test results based on some or all of the following:
- Failure to carefully monitor a driver during the mandatory waiting period to prevent the presence of mouth alcohol from belching, regurgitation or acid reflux
- Traits that might diminish the reliability of breath testing, such as gender, diabetes or low-carb diets
- Alcohol trapped in dental work (mouth alcohol)
- Attacking Standardized Field Sobriety Tests in White Plains DWAI Cases
Our White Plains DWAI defense attorneys also have experienced success in DWAI cases because a BAC below .08 percent impugns the evidence the prosecutor must rely on to prove a violation. Field sobriety tests take on an increased importance in DWAI cases because a BAC result is not sufficient to justify a conviction. All field sobriety tests have a reasonably high false positive rate for identifying sober drivers as intoxicated. Despite the fact you may have seen many of these tests on television, such as counting backwards or reciting a portion of the alphabet, the National Highway Traffic Safety Administration has only approved three of these tests as having any degree of reliability in identifying intoxicated drivers: (1) the one-leg stand, (2) walk and turn, and (3) the horizontal gaze nystagmus. These three tests are collectively referred to as “standardized field sobriety tests” (SFSTs).
Even if these tests are conducted by thoroughly trained police officers under perfect conditions, each of these tests has a reasonable degree of inaccuracy. Further, many law enforcement officers have not received extensive training in conducting, demonstrating and scoring SFSTs. This allows our White Plains criminal defense attorneys expose such deficiencies in court. Both Jeff Greco and Dustan Neyland attended the same training that all law enforcement officers attended for standardized field sobriety tests, and they are certified by NHTSA to administer these tests, just like the officers who arrested you. Further, these tests are usually not conducted under optimum conditions, rather the results may be unreliable because of some or all of the following:
- Stress of the situation
- Wind or proximity to traffic moving at high rates of speed
- Uneven pavement or soft dirt
- Injuries or disabilities
- Diabetes (i.e. excessively low/high glucose levels)
- Natural lack of coordination
While all of these factors impact the reliability of SFSTs, there is a unique challenge for prosecutors in DWAI cases. These tests are designed to identify drivers with a BAC level over .08 percent. If the driver has failed but has a BAC of .05-.07 percent, the fact the driver has a BAC level below .08 percent already suggests that the test reached a result that is contradicted by breath or blood test results.
If you have a BAC level of .05 or .06 percent, we often will get the case dismissed, or the prosecutor will reduce the charge. However, our law firm is uniquely situated to represent those with a .07 percent BAC because prosecutors are usually unwilling to offer a reasonable plea bargain in such cases. The offer from the prosecutor will generally be that you can plead guilty to the offense as charged. In this situation, you have nothing to lose by taking the case to trial. Since our White Plains DWAI defense lawyers prefer to provide a persuasive defense at trial, we are a perfect fit for cases where the prosecutor refuses to offer an appropriate reduction in the charge. Simply stated – we are ready for a fight. We are ready to go to trial and make them prove their case!
At Greco Neyland PC, our White Plains DWAI criminal lawyers represent clients in White Plains and the surrounding areas of New York. We offer a free consultation so we can answer your questions and explain your legal rights. Please call us today at (914) 358-9146 or click here to schedule your free consultation.
75 S. Broadway Suite 477
White Plains, NY 10601
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