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Common Mistakes Made after a DWI Arrest

Last updated on: July 26, 2022

By Lebedin Kofman LLP

First, it is important to understand the breakdown of what happens when you got pulled over and arrested for a DWI. People who have just been arrested really want to know how to evaluate their case and understand how bad it actually is. They want to know what the prosecutor is thinking and whether they can somehow get some leniency. Before you make any decisions, speak with a qualified New York City criminal attorney.

You Can Get Pulled Over for Simple Traffic Violations

The main question people should ask is, firstly, why was I stopped in the first place? The most common reason people get pulled over is actually because of tinted windows, obstruction of view, or a broken taillight.

In the state of New York, you can also get pulled over if you have something hanging from your rearview mirror. This happens all the time.

You Might Get Pulled Over for Driving Improperly & at Certain Times of the Night

Police officers are usually just looking for criminality; although, if they see a reason to pull you over on a Saturday or a Friday night where they suspect there are a lot of people on the road drinking and driving, then they can use any excuse to pull you over.

If you thought you were pulled over improperly, then the next step is for you to look for cameras where you were pulled over. You should take pictures of whatever road signs you saw or that you think you did not violate which the police claimed you had.

An Accident, Whether or Not You Were Intoxicated, Would Always Complicate Your Case

If there was an accident, it matters how severe the accident was. An accident would be an aggravating factor that could complicate your DWI because the prosecutor will look at that when evaluating what potential plea to offer and how to proceed with the case.

Never Make Admissions to the Police That You Had Been Drinking Alcohol

Another mistake people make is the statements they tend to give police officers. Ninety nine percent of the time when someone is pulled over by a police officer, one of the first things law enforcement will ask for after the license and registration is how many drinks you had. For some reason, most people instinctively say they had one or two beers.

People are generally of the mentality that they do not want to lie to an officer, but then they also want to downplay the criminality. Admitting to having consumed any kind of alcohol is the worst thing anyone can do because they will complicate their case.

There has even been a case where the court of appeals found that 13 hours was enough time to charge someone with a DWI. This means that even if the person had a drink 13 hours ago, it could give reasonable suspicion for the police officer to have someone step out of the vehicle and give them a breathalyzer test.

If you are ever pulled over, the only thing you should ever say to the police officer is that you do not drink. If the police officer asked how many drinks you had, you should never admit to drinking because that would substantially hurt your case.

Dealing with the Portable Breath Test

The next issue is whether or not you had to take the portable breath test or the Alco-Sensor after you stepped out of the car. This is a little gadget that you would have to blow into at the side of the road when you were pulled over. The portable breath test is not a reliable test and can never be admitted into evidence if the case were to go to trial.

The machine is called an Alco-Sensor, and it will tell the officer whether or not there was the presence of alcohol on your breath. The officer would have to wait 20 minutes before administering this test to make sure you had not consumed any food or put anything in your mouth that would cause a false positive or a false negative.

Dealing with Field Sobriety Tests & the IDTU Video at the Station

The next issue is whether you had performed field sobriety tests when you were pulled over and how you did on those tests. The officer makes an IDTU video when they take you to the precinct, and how you looked on the video would be very important in regards to how your DWI case is evaluated and how it proceeds.

They will take into consideration whether you were falling down drunk or whether you looked good, whether you were you walking and turning properly, whether you were standing on one foot okay, and if you could touch the tip of your nose with your fingers. Generally, they are looking to see if you were coherent.

Your performance on the field sobriety tests is, of course, very important, but the crown of it would be how you did on the Breathalyzer given at the precinct on video. New York City uses the Intoxilyzer 5000EN, so they would see how you did on the test, what your reading was, how many times you had to take it, and whether it was an accurate machine.

Refusing the Breath Test or Field Sobriety Tests

If you refuse to take a breath test at the station, the officer will look to see if you also refused the portable breath test at the side of the road or whether you gave the portable breath test reading and then decided to refuse the Breathalyzer when you got to the precinct.

If you decide to refuse, then it is best to refuse everything. Sometimes, people who have very high portable breath test readings then decide to refuse the breath test at the precinct, and that actually ends up prejudicing their refusal case.

In the case where you did refuse, you would actually need to have a separate civil proceeding at the DMV within 12 days of your arrest. The DMV would have to prove certain elements in order to give you a one-year license revocation, and in case you had refused, the statements you made would also affect your case.

Being a Repeat Offender Would Enhance Penalties

Your case will be affected if you were a repeat offender, meaning whether this was your first arrest or this was something you had done two or more times before. A lot of our practice involves dealing with people who have had two or sometimes even four and five DWIs. The highest number of DWIs we have seen was by a client who had 7 DWIs over a period of 35 years.

People with a Commercial Driver’s License Have to Face Very Strict Penalties

The last aspects to consider would be whether you had a commercial driver’s license and whether you were somebody who used their commercial driver’s license and needed to drive for work. Commercial drivers are often hurt the most because their license would usually be suspended as soon as they are arrested, leaving them unable to work.

Any plea that a commercial driver takes, such as a VTL plea or even a downgraded plea of driving while ability impaired, would result in an 18-month license revocation of their CDL. They would need a DWI attorney in New York who could flag that and then try to work something out with the prosecutor so that this would not happen.

To learn more about our New York DWI lawyers and how we can help you, contact us today at (646) 663-4430 and schedule a free consultation.

Criminal Defense

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