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DWI News

Breathalyzers and the 15 minute Observation Rule

Vehicle and Traffic Law §1192-2 & 11922(a) requires an analysis of a motorist’s breath for alcohol content. Law enforcement is required to follow the New York Code of Rules & Regulations (NYCRR) Part 59 to ensure the admissibility of that breath sample.

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DWI Roadblocks and Checkpoints

Roadblocks and sobriety checkpoints are being utilized with more and more frequency by law enforcement to apprehend impaired and intoxicated drivers. They are a quick and efficient method to investigate and charge impaired or intoxicated motorists under the Vehicle and Traffic Law.

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New regulations against drivers with multiple DWI convictions

In the Fall of 2012, the NYS Department of Motor Vehicles implemented new regulations against drivers who had multiple DWI convictions. For example, a driver with 5 or more alcohol/drug related convictions over a 25 year time period now faces a lifetime driving ban absent compelling or unusual circumstances. An individual with 3 or more alcohol/drug related convictions over a 25 year time period faces a 5-year driving ban. In addition, a person with a serious driving offense (SDO) is defined as a person with 20 violation points in 25 years. DMV is taking a very close look at a person’s lifetime drivers abstract. Driver’s must pay close attention to any traffic ticket that would place additional points on their driving record.

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Roadblocks/Sobriety Checkpoint

Often times, law enforcement may use an investigative tool called a roadblock to investigate individuals who may be under the influence of alcohol and in violation of VTL §1192. These are also commonly referred to sobriety checkpoints.

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Suggestions for individuals to consider during an encounter/engagement with a member of law enforcement

  1. Your goal is to keep the engagement as cordial and brief as possible.
  2. To further that goal, you want to be respectful and non-threatening – you should keep your hands within the clear view of the officer and avoid abusive or belittling language.
  3. You should be prepared to readily provide any documentation requested – such as your driver’s license, registration, and proof of insurance.
  4. You should also be mindful of your body language – avoid hasty or quick body movements.

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Admission of a Breath Test Score

If a defendant takes a breath test, in all likelihood the prosecutor will try to have their BAC score admitted at the trial. A summary of the legal requirements for the admission of a breath test score that must be met by the prosecutor is set forth below.

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The 'Extrapolation' or 'Relation Back' Defense

VTL § 1192-2 (Driving While Intoxicated per se) provides that “[n]o person shall operate a motor vehicle while such person has a .08 of one per centum or more by weight of alcohol in the person’s blood” (emphasis added). This statute requires the prosecution to establish that the driver had .08 or more BAC at the time of operation. However, because 10 NYCRR 59.5 only requires that s a single test be administered within two hours of the arrest (or a positive breath test screening), it is impossible for the trier of fact to determine whether the client’s BAC had risen or fallen between the time of operation and the time the breath test was administered. In certain cases, because of a relatively low breath score (e.g., .12% BAC) and the amount of time between the stop of the client’s vehicle and administration of the breath test, an argument may be made that the client had less than a .08% BAC while driving but had greater than a .08% BAC when tested.n People v. Mertz, 68 N.Y.2d 136 (1986), the Court of Appeals held that it was error for the trial court to refuse to allow counsel to argue that the defendant’s BAC was less than .10% at the time of operation:

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Constructing the Client’s Defense

In working with our office, we want each client to become familiar with the basic statutory elements in a DWI (VTL § 1192) charge. The most frequently encountered alcohol related charges are as the following:

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What is the distinction between VTL § 1192-2 (The Chemical Test/BAC) and VTL § 1192-3 (VTL § 1192-3)

When devising a trial strategy to defend against a VTL § 1192-2 charge predicated upon a breath test score, the distinction between this section and VTL § 1193-3 – common law DWI – becomes very important. In People v. Miller, 199 A.D.2d 692 (3d Dept. 1993), the Court upheld the defendant’s conviction for VTL § 1192-2 where the defendant’s BAC score was .14% as shown by a chemical test of his breath. In noting the distinction between VTL § 1192-2 and VTL § 1192-3, the Court wrote:

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What Constitutes ‘Operation’ of a Motor Vehicle

Courts have consistently examined certain factors in deciding whether a person was “operating” a motor vehicle in violation of VTL § 1192. In People v. Zervakos, N.Y.L.J., Feb 27, 1998, at 33, col.6. (Nassau Co.), The Court set forth several factors that are typically considered when the element of “operation” is challenged. These factors are:

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Were You Arrested After a DWI Checkpoint or Roadblock?

Recently DWI checkpoints have been a hot topic in DWI law discussions. The United States Supreme Court has also reviewed the issue of the constitutionality of DWI checkpoints. The National Motorists Association reports that in Michigan Department of State Police v. Sitz, the Supreme Court held that the checkpoint in question did not overwhelmingly intrude on the motorists’ Fourth Amendment privacy rights. Crucial to the decision was the fact that out of 126 drivers, only three were stopped and asked to perform field sobriety tests. The court further held that generally, state DWI checkpoints are reasonable under the Fourth Amendment. However, it is important to note that police officers do not have an unfettered right to search a driver at a DWI checkpoint.

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Driver's License Challenges for the Multiple Alcohol or Drug Offender

In September of 2012, at the direction of Gov. Cuomo, the Department of Motor Vehicles issued new regulations that are directed at keeping drivers off the road who have sustained multiple convictions for either alcohol or drug related driving offenses. These new regulations have had a tremendous impact on making it more difficult for offenders with numerous driving related offenses from obtaining a driver’s license from the Department of Motor Vehicles. We are encouraging prospective clients to make efforts to obtain a lifetime driver’s abstract so that they can review their entire driving history and assess whether or not they are at risk for permanently losing their license in New York State. Some of these new regulations are summarized below:

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Can I get into Canada after a DWI?

Entry to Canada can be a problem after a drinking and driving violation. However, within the first 5 years following the resolution of the case, one can gain access to Canada for employment reasons by filing a Temporary Resident Application. After 5 years, an application for Rehabilitation can be filed to permit the violator access to Canada for any reason once again. Also, Rehabilitation can solve the entry problem for someone whose record has more than one offense on it, the most recent of which was resolved 5 years ago. For someone whose sole offense was more than 10 years ago, the problem entering Canada goes away without any need to file an application, under the Deemed Rehabilitation statute.

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