| My typical day begins something like this, "Hi, I got | | | | extent) of operating an automobile as a reasonably |
| arrested for a DWI last night?" and my response is | | | | prudent driver." |
| usually, "let me ask you a few questions first to help | | | | 6. They must prove this legal burden of "intoxication" |
| give you some guidance and direction." The reason | | | | beyond a reasonable doubt based upon the police |
| for my first couple of questions is to tell me exactly | | | | officer's observations, and field testing, if any. |
| what "type" of DWI case we are dealing with. | | | | 7. They can not use the Preliminary Breath Test |
| DWIs like people come in different shapes, sizes, and | | | | results (at roadside) to prove their case. |
| packages. DWIs can be: | | | | 8. The DWI defense lawyer can cross examine the |
| | | | | police officer at the DMV administrative hearing |
| 1. With or without a traffic stop, ie. maybe the police | | | | without the presence of the prosecutor. |
| were called to the scene to investigate an accident, | | | | 9. The cross examination can cover the stop, the |
| or a person asleep behind the wheel, or a BOLO (be | | | | arrest, and the field testing. |
| on the lookout) for an erratic driver, called in from a | | | | Second, the two main negatives of the refusal case: |
| tip | | | | 1. You will have NO license of any type (conditional or |
| 2. With or without a breath test (the chemical test | | | | hardship) while your criminal case is pending. NOTE: |
| back at the police station or barracks) | | | | unless you win at the administrative refusal hearing |
| 3. With or without prior DWIs or DUIs or DWAIs or | | | | (unlikely) or the officer does not show for the |
| ADWIs | | | | hearing and it is re-scheduled. |
| 4. With or without a New York State Driver's License | | | | 2. The jury will get an instruction from the Judge that |
| 5. With or without a Sobriety Check Point | | | | they may infer a Consciousness of Guilt from your |
| By no means is this list complete. There are many | | | | choice to not take the chemical test. |
| different DWI situations and combinations. | | | | Personally, I like Refusal cases because they offer |
| The Chemical Test Refusal DWI Case is unique for a | | | | opportunities to challenge the purely opinion evidence |
| number of reasons. | | | | of intoxication. The opinion of the officer is an opinion |
| First the positives of the refusal case: | | | | based in bias. He or she will want to support their |
| 1. The police and prosecution do not have a breath | | | | decision to stop and arrest you. Their instructing, |
| test BAC to prove their case. | | | | demonstrating, and evaluating you on the Field |
| 2. They can not charge VTL 1192 (2) BAC .08 or | | | | Sobriety Tests or (Roadside Agility Maneuvers) can |
| > or VTL 1192 (2) (a) Aggravated DWI BAC .18 | | | | usually be shown to be unfair. If we can show you |
| or >. | | | | were coherent (understood the officer's directions, |
| 3. The prosecutor can only charge VTL 1192 (3), | | | | instructions, questions) then providing other reasons |
| "Common Law" DWI. | | | | for your bloodshot eyes, slurred speech (or |
| 4. The prosecutor usually only has one main witness, | | | | impairment), and lack of balance create |
| the arresting officer. | | | | REASONABLE DOUBT in the minds of the jury as to |
| 5. The prosecutor must prove that "you were | | | | your intoxication. |
| mentally and physically incapable ( to a substantial | | | | |