Articles Posted in DWI and Traffic Offenses

Braylon Edwards, the New York Jets star wide receiver, was arrested and charged in Manhattan after being stopped for suspicion of Driving While Intoxicated (DWI / DUI) and drunk driving. Although it is not clear what, if any, field sobriety tests were administered, reports indicate that Edwards blew a .16 on the Intoxilyzer (a Breathalyzer device). The likely charges are VTL 1192.2 for registering .08 or above, VTL 1192.3 (“Common Law DWI”) based on the observations of the police officer which may have included watery blood-shot eyes, slurred speech, etc., and VTL 1192.1 (Driving While Ability Impaired). DWI in New York pursuant to VTL 1192.2 and 1192.3 are both misdemeanors. VTL 1192.1 is a violation and would not result in a criminal conviction.

While it is too early to give a full analysis of Edwards’ DWI case, as a general rule, Manhattan prosecutors do not make non-criminal offers on DWI arrests where the BAC level is as high as .16. While it is common for offers of VTL 1192.1 (a traffic infraction) to be made on DWIs in the vicinity of .08 to .12, it is significantly more difficult to get an offer the higher one’s BAC is. Other factors prosecutors examine include the defendant’s history and whether there were any elements of the offense that would enable them to charge additional crimes such as Reckless Endangerment (DWI by itself is not necessarily “reckless” in the eyes of the law. Other factors of criminality must be present such as speeding / weaving through traffic, barely avoiding pedestrians, etc.). Moreover, although Edwards did not blow a .18, if he had done so, Aggravated DWI would be charged further limiting possible dispositions.

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The first defense to any drunk driving charge is simple. Don’t do it. Unfortunately, we all have and will continue to make mistakes whether they are criminal in nature or not. In the realm of criminal law, however, a mistake made by a a good and honest person is often magnified exponentially. Regardless of how it came to be, a charge or allegation of Driving While Intoxicated (DWI / DUI) in New York is a serious offense codified in Vehicle and Traffic Law (VTL) 1192. While the following is not an in depth analysis of the DWI / DUI laws in New York State, the offenses listed below are some of the most common charges:

VTL 1192.1 – Driving While Ability Impaired

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A common offense handled by New York criminal defense attorneys, Vehicle and Traffic Law section 511 (“VTL 511”) is a crime in New York where a person operates a motor vehicle while his or her right to do so is suspended. Although there are varying degrees from misdemeanor to felony, one of the most common of these crimes is Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree pursuant to Vehicle and Traffic Law section 511(1)(a) (“VTL 511(1)(a)). New York Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree is defined in general terms as follows:

One is guilty of the of Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree when one is operating a motor vehicle (car, truck, etc.) on a public highway (just about any public road, street, etc.). At the same time, one must know or have a reason to know one’s privilege, right or license in New York is suspended, revoked or otherwise withdrawn.

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As a New York criminal defense attorney and former Manhattan prosecutor I have represented and prosecuted a significant amount of people for DWI / DUI crimes including Vehicle and Traffic Law (VTL) sections §1192.3, §1192.2 and §1192.1. On occasion, an accused asserts that they in fact were not “driving” the vehicle and, therefore, are not guilty of these offenses. While there may be merit to such a defense, where do courts stand on this issue not as a defense at trial, but as it relates to probable cause for the police to make the initial arrest? In other words, if you were merely warming up in the vehicle with the engine running, but not moving or “operating” it otherwise, would the police have probable cause to arrest you once they approached your vehicle, smelled the alcohol, etc.? While each case requires its own unique analysis, a Suffolk County District Court (a similar level court to a New York City Criminal Court that handles misdemeanors), recently addressed this issue.

In People v. Ciccone, 2008SU50102, the accused was charged with Operating a Motor Vehicle Under the Influence of Alcohol or Drugs in violation of New York State VTL §1192.3. In that case, the police officer observed the defendant’s vehicle on the shoulder of the road. When he approached, the officer observed the defendant sleeping in the driver’s side with the engine running. Knocking on the window, the officer smelled alcohol on the defendant’s breath once the window was lowered and the defendant woke up. After that, the officer observed numerous other signs of the accused’s alleged intoxication and ultimately arrested him.

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Make no mistake. New York DWI / DUI laws have just gotten significantly harsher. In fact, pursuant to New York Vehicle and Traffic Law (VTL) section 1192.2-a(b) / 1192(2a)(b), otherwise know as Leandra’s Law, a misdemeanor Driving While Intoxicated is “bumped up” to a felony offense if you perpetrate the “drunk driving” crimes of VTL 1192.2, VTL 1192.3, VTL 1192.4 or VTL 1192.4(a) and a child 15 years old or younger is in that vehicle.

More specifically, one can be charged with felony DWI / DUI pursuant to VTL 1192.2-a(b) / VTL 1192(2a)(b) when that person either has a BAC of .08 or greater, is intoxicated due to drug or alcohol ingestion or is “common law” DWI. Although often more difficult to prove due to the lack of scientific evidence, “common law” DWI refers to cases where an individual does not give a reading or sample of breath, urine or blood, but the police articulate the individual’s intoxication due to certain characteristics such as unsteadiness on one’s feet, slurred speech, the smell of alcohol, and watery-blood shot eyes, etc.

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While you shouldn’t need a NY criminal defense attorney to tell you it is a bad idea to get behind the wheel of a vehicle in New York State (or any state for that matter) after having consumed alcohol, Saland Law PC has provided our readers with a tool that can assist them in understanding how much alcohol one must consume before one is legally intoxicated. In New York, that legal level to sustain a conviction for Driving While Intoxicated (DWI /DUI) is .08. However, even if one’s BAC is not recorded, courts can still find one guilty under the “Common Law” DWI / DUI statute that is satisfied through observations of drunkenness on the part of a police officer.

The tool linked on our DWI / DUI web page, should not be used as a means to guide you as you are drinking to ascertain whether you are “ok” to drive. There are too many factors that need to be taken into consideration and in no way will this calculator give you an exact determination of your BAC. Under no circumstance should it be relied on for that purpose. Instead, the calculator is a means to get a general understanding of the relationship between your weight, type of alcohol, amount of alcohol and time of consumption on your BAC.

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According to reports, “Leandra’s Law” is coming closer to reality. The New York State Assembly agreed on their version of the bill that will raise Driving While Intoxicated / DWI (1192.2 and 1192.3) to a felony offense in the event that a child under the age of 15 is a passenger in the vehicle. It is not clear if the felony will be applicable on DWI / DUI crimes involving drug use or merely alcohol. Both the New York State Senate and the Assembly have to agree on their respective bills before Governor Patterson signs the bill into law. We will keep our readers informed.

Saland Law PC is a criminal defense firm founded by former Manhattan prosecutors. Follow our legal updates online at NewYorkCriminalLawyerBlog.Com and on Twitter.

Many New York criminal defense attorneys have handled cases with unique, if not “funny” sets of facts. While no criminal accusation is a laughing matter, criminal defense attorneys always have to be ready to handle situations that fall outside every day parameters. In the context of Driving While Intoxicated (DWI) pursuant to Vehicle and Traffic Law section 1192.3, one criminal defense lawyer and the court were confronted with such a situation. In that case, People v. Krivak, a Rockland County, New York Village Justice addressed the following issue: Is one’s inability to urinate for the purpose of submitting to a chemical test a legal “refusal.”

Briefly, and by way of background, New York permits the prosecution of individuals who are deemed to be driving while intoxicated even if their BAC is not recorded. This offense is often referred to as “Common Law DWI” and is found in the Vehicle and Traffic Law under section 1192.3 Police and prosecutors establish this crime by asserting that the accused had certain characteristics such as watery and blood-shot eyes, the smell of alcohol, slurred speech and unsteadiness on their feet. If a person refuses to take a chemical test to ascertain if and the amount of alcohol in their system, their failure to do so may legally be construed as a refusal. This refusal can then be used at a trial as evidence of the defendant’s guilt.

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