Whether you are operating a motor vehicle in Manhattan, Brooklyn, Westchester or anywhere else in New York State, the DWI laws are all the same. For example, if you “blow” and register a .08 or higher BAC, you will face a per se arrest charge of Driving While Intoxicated pursuant to New York Vehicle and Traffic Law 1192.2. As a New York DWI lawyer I have seen District Attorney’s Offices vary in their respective offer thresholds (meaning how high a blow is tolerated) when an individual is arrested for DWI, DUI or drunk driving. However, New York DWI law limits what may ultimately be offered in these DUI cases and what a defendant is required to do in order to regain their your driving privileges.
Beyond potential offers, the manner in which your arrest for DWI occurred in New York may also be relevant in the ultimate resolution. Certainly, if you were observed swerving and almost striking a car or person it is more likely the offer will be more severe if one is made at all. What if, however, your stop and arrest was a product of a checkpoint? While the checkpoint itself is not indicative of the type of offer, if any, you will receive, the checkpoint’s legality and validity is critical. If for some reason you are arrested for Aggravated DWI for blowing a .18, for example, and you were stopped pursuant to a police checkpoint, prosecutors would likely not make you any offer. However, if you had a potent legal defense, such a valid challenge to the checkpoint procedure and implementation, an offer may not be needed at all. Challenging the checkpoint and ultimate search and seizure of your person, as difficult as it may be, is an avenue that should not be ignored. Although it failed in the case below, the following decision offers a good, but very basic, primer on DWI checkpoints.
In People v. Jason Arnone-Foster, 2010SU026886, NYLJ 1202563668905, at *1 (Dist., SU, Decided July 11, 2012), the defendant was arrested for DWI after he was stopped at a DWI checkpoint. Without providing much more detail as to the facts and circumstances of the arrest and checkpoint in the decision, the ruling makes it clear that the police stopped at least five vehicles. The basis of the checkpoint stops (for example, every third vehicle) is not clear. Upon stopping the defendant’s car, the police officer noticed that the defendant had “droopy eyes” and smelled from alcohol. Ultimately, the defendant failed field sobriety tests as well as portable breathe test. At that point, the police placed Arnone-Foster under arrest for DWI (as an aside, but relevant to the probable cause to arrest the defendant as well as the strength of the prosecution’s case, the defendant admitted to having a bottle of wine at dinner).
As an initial matter, the Court recognized that “a roadblock or checkpoint stop is a seizure within the meaning of the Fourth Amendment.” People v. Scott, 63 NY2d 518, 524 (1984). In other words, the police are not merely free to seize you or your car without a legal foundation. However, not all seizures of vehicles are automatically unconstitutional. In fact, the law is quite clear. As long as there is a plan of action implemented by officers in a checkpoint scenario that is explicit and neutral in its application limiting an officer’s conduct, that checkpoint based seizure can be constitutional. As the Court further noted “[t]he measures of the intrusion on the individual’s interests are the checkpoint’s subjective effect on the individual and the amount of discretion the officers have in carrying out such procedure. These are balanced against the governmental interest involved and the effect of the procedure on such interest.” As found in both Arnone-Foster and Scott, the checkpoint must have an explicit administrative plan that is adhered to by the police officers and the stoppage of any vehicle must not be discriminatory.
A review of one case will not be determinative as to whether or not your DWI or DUI arrest in New York was a product of a proper and legal checkpoint. Reviewing of case decisions along with your DWI attorney will put you in the best place to pursue this or any other viable defense.
To educate yourself on New York DWI crimes and laws as well as DWI case decisions that interpret these statutes, follow the highlighted links above or go directly the Driving While Intoxicated and DUI sections of Saland Law PC’s website and blogs below.
Founded by two former Manhattan prosecutors who served in the DWI Units and Trial Division, Saland Law PC is a New York criminal defense firm representing clients in DWI arrests and trials throughout the New York City region.