Frequently Asked Questions
What are the different types of DWI in New York?
New York designates DWI offenses under six types of offenses:
(a) Driving while ability impaired (a.k.a. “DWAI”). See VTL § 1192(1);
(b) Driving while intoxicated; per se (a.k.a. “per se DWI”). See VTL § 1192(2);
(c) Driving while intoxicated (a.k.a. “common law DWI”). See VTL § 1192(3);
(d) Aggravated driving while intoxicated (a.k.a. “Aggravated DWI”). See VTL § 1192(2-a);
(e) Driving while ability impaired by drugs (a.k.a. “DWAI Drugs”). See VTL § 1192(4); and
(f) Driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs (a.k.a. “DWAI Combined Influence”). See VTL § 1192(4-a).
To find out more about your DWI charge, contact Nassau County DWI Lawyers at Law Office of Richard Hochhauser, PLLC.
Is it illegal to drink and drive in New York?
Unless a person is under 21 years of age, the mere act of driving after consuming alcohol is not illegal in New York.
In fact, New York DWI laws recognize that the average person can consume a certain amount of alcohol without impairing his ability to drive as he should. So much so, that the New York DWI laws provide that proof of .05 or less of blood alcohol content ("BAC") is a presumption that the driver was not impaired or intoxicated.
Importantly, some people's driving abilities may be affected by even a small amount of alcohol consumption and, therefore, would be guilty of driving while impaired while others would not. Driving while ability impaired, or DWAI, is the law that takes into account the “subjective” tolerance of individuals in determining the ability to drive by that particular person.
Of course, if a driver has .08 blood alcohol conent ("BAC"), then he can automatically be charged with DWI in New York.
If you think you are being charged with DWI for drinking and driving in Nassau County or New York, but you weren't actually intoxicated, contact Law Office of Richard Hochhauser, PLLC, today!
What is "common law DWI" in New York?
VTL § 1192(3) is commonly referred to as “common law DWI.” In essence, it means to drive drunk. No proof of your blood alcohol content, or BAC, is required to sustain a charge of common law DWI in New York.
If you refuse to submit to a chemical test or breath test in Nassau County, New York, then you will almost certianly be charged with common law DWI. Especially in Nassau County, it is nearly impossible a defendant who refuses to submit to a chemical or breath test to only be charged with DWAI, which is the violation.
Common law DWI is based upon whether your driving, appearance, demeanor, manner of speech, motor coordination, performance on field sobriety tests, etc. establish that you were intoxicated. Not all of the symptoms of intoxication must be present; nor is erratic driving a requirement. Rather, New York law explains the totality of the circumstances must lead to the conclusion that the defendant “voluntarily consumed alcohol to the extent that he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver.”
Therefore, to sustain a charge of common law DWI, you must actually appear intoxicated. Thus, if you have a higher tolerance for alcohol than the average person, then this is an argument that can be used in your defense to a common law DWI charge.
If you've been charged with common law DWI in Nassau County, call Valley Stream DWI Lawyer Richard Hochhauser for your free consultation.
Can I be charged in New York with DWI for driving while impaired by drugs?
In short, no.
In New York, DWI charges (as opposed to DUI) only apply to being intoxicated by alcohol to the extent that the driver is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver.
To be charged with driving while intoxicated in York, you must be “intoxicated” by the consumption of alcohol, more specifically an alcoholic beverage, including spirits, wine, liquor, beer, cider and every liquid containing alcohol and capable of being consumed by a human being.
If you think you have been charged with DWI when you were not intoxicated by an alcholic beverage, contact Nassau County DWI attorney Richard Hochhauser.
Can I be charged with "attempted" DWI in New York?
While you cannot be charged with attempting to drive while intoxicated, you can plea to a reduced charged of attempting to driving while intoxicated.
If you have been falsely charged with DWI, contact top rated Nassau County DWI Attorney Richard Hochhauser for a free consultation.
In New York, is there a DWI defense of justification?
In New York, there are very narrow circumstances where you can argue that you were justified in driving while intoxicated. Examples of justification may include (i) if you were forced to drive while intoxicated under emergency circumstances such as a danger to your life; and (ii) if police made you drive when you otherwise would not have.
If you believe you may have a valid justification defense, contact Nassau County DWI Lawyer Richard Hochhauser today for a free consultation.
What is "per se" DWI in New York?
VTL § 1192(2) is commonly referred to as “per se DWI.” The charge is called “per se” because it makes it illegal for a person to drive with a BAC of .08% or more regardless of whether such BAC rendered the person “intoxicated" (as opposed to "common law" which only focuses on whether the person is "intoxicated."
In New York, it is possible for you to have a .08, and not be found o be in an intoxicated condition. Similalry, you can be found to be in an intoxicated condition even if you are below a .08 BAC.
For "per se" DWI in New York, it does not matter whether you have a higher or lower tolerance for alcohol; all that matters is what is your blood alcohol content.
While it is "per se" illegal to drive with a .08, it is important to note that the .08 must be proven when you were driving. In most DWI cases in Nassau County and New York, the breath test is not taken until hours after the individual was pulled over. Therefore, there is always a possible defense that the driver's blood alcohol content was lower when he was driving than when the test was given. In this case, a Nassau County DWI Lawyer would attempt to convince the jury that although you were a .08 when you took the test, you were actually below the legal limit when you driving.
If you believe that you were below a .08 while you were driving, contact Nassau County DWI Lawyer Richard Hochhauser for a free consultation.
What is "aggravated DWI" in New York?
VTL § 1192(2-a) is commonly referred to as “Aggravated DWI.”
There are two types of Aggravated DWI. The first type, per se Aggravated DWI, makes it illegal to operate a motor vehicle with a BAC of .18% or more.
The second type of Aggravated DWI makes it illegal to violate any DWI offense with a child under the age of 16 in the vehicle. This offense is known as “Leandra's Law” in New York. A Leandra's Law violation is a felony, even for a first offense.
If you have been charged with Aggravated DWI or Leandra's Law in New York, call Valley Stream DWI Attorney Richard Hochhauser for your free consultation.
How much does a DWI lawyer cost in New York?
There is no question that a DWI lawyer in New York can be costly. However, the top rated Nassau County DWI lawyers at the Law Office of Richard Hochhauser, PLLC always charge flat fees for its services - so you always know what to expect and will never be suprised or approached for more money. We continue working until the job is done!
What is "felony DWI" in New York?
The most common felony DWI charges in New York result from a defendant who is charged with DWI, DUI, or aggravated DWI, and have a misdemeanor or felony DWI conviction within the preceding 10 years, in which case the defendant is charged with an E felony.
If the defendant has two prior DWI convictions within the preceding 10 years, he can be charged with a class D felony.
If a defenant has three or more DWI related convcitions within the preceding 15 years, he can be charged with a class D felony.
If you've been charged with felony DWI in New York, contact top rated Nassau County DWI Lawyer Richard Hochhauser to discuss your case.
Does an out of state DWI conviction make my New York DWI a felony?
VTL § 1192(8) provides that a prior out-of-state conviction for DWI or DUI will count as a prior conviction for felony purposes, if "had it occurred in this state, [it[ would have constituted a misdemeanor or felony violation" of DWI or DUI.
If, however, the out-of-state conduct would only have been considered a DWAI in New York (regardless of the level of offense out-of-state), then such conduct shall only be deemed to be a prior conviction of a violation of [VTL § 1192(1)].
For example, even if you have a "misdemeanor" conviction in another state, but that misdemeanor was a result of a .07 BAC, then that "misdemeanor' will not count as a misdemanor for felony upgrade purposes in New York.
if you have a prior out of state DWI conviction in New York, contact Nassau County DWI Lawyer Richard Hochhauser to see if your cases is considered a felony or a misdemeanor.
What are the legal elements of DWI in New York?
New York Pattern Jury Instructions provide for the following 2 elements for a DWI per se charge:
1. That on or about (date) , in the county of (County), the defendant, (defendant’s name) , operated a motor vehicle; and
2. That the defendant did so when he/she had .08 of one per centum or more by weight of alcohol in his/her blood, as shown by a chemical analysis of such person’s blood, breath, urine or saliva.
The New York Pattern Jury Instructions provide for the following 2 elements for DWI common law charge:
1. That on or about (date) , in the county of (County), the defendant, (defendant’s name) , operated a motor vehicle; and
2. That the defendant did so while in an intoxicated condition.
It is important to have a DWI lawyer who understands each and every element of a New York DWI charge. Contact the experienced DWI attorneys at the Law Office of Richard Hochhauser, PLLC today.
What is a PBT?
A "PBT" is a portabe breath test. In New York and Nassau County, most officers carry a PBT in their vehicles. The PBT is a handheld breathalyzer that is used on the side of the road at the time of the arrest. The purpose of the PBT is to help the officers establish probable cause.
Importantly, however, the PBT reading
may not be used against you at trial. The only BAC reading that can be used at trial is the reading that is obtained if/when you submit a breath sample back at the police station or baracks.
Still, there is conflicting caselaw as to whether your refusal to submit to the PBT on the side of the road can be used against you at trial.
If you have a high PBT reading, or refused the PBT on the side of the road, contact Nassau County DWI attorney Richard Hochhauser for a free consultation to discuss the nuances of your cases.
Why was I arrested for DWI if my driving was perfect?
Interestingly, erratic driving is not an element of DWI in New York. Thus, even if someone is is not driving erratically, they can still be convicted of DWI. Still, if someone's driving is unaffected by alcohol, it provides a strong defense to a DWI charge.
if you are charged with DWI, but your driving was unaffected by any impairment, contact Nassau County DWI lawyer Richard Hochhauser to fight your case.
What does it mean to be "intoxicated" for a DWI in New York?
The New York pattern jury instructions dictate that:
"A person is in an INTOXICATED condition when such person has consumed alcohol to the extent that he or she is incapable, to a substantial extent, of employing the physical and mental abilities which he or she is expected to possess in order to operate a vehicle as a reasonable and prudent driver."
While there is no single factor which dictates whether somone qualifies as intoxicated, the New York courts have provided for an outline of examples of factors, including:
1. The defendant’s physical condition and appearance, balance and coordination, and manner of speech;
2. the presence or absence of an odor of alcohol;
3.the manner in which the defendant operated the motor vehicle;
4. opinion testimony regarding the defendant’s sobriety;
5.[the circumstances of any accident; and
6. the results of any test of the content of alcohol in the defendant’s blood.
If I was a .08 BAC, does that mean I'm intoxicated?
No. In New York, it is well established thath a person can be intoxicated with a BAC below .08%, and can have a BAC above .08% without being intoxicated. It is important to understand that just because you blow a .08%, does not necessarily mean that you are intoxicated. Additionally, there are many defenses to show that the BAC reading is artificially high.
Importantly, the government must also prove that you were a .08%
while you were driving. Experienced DWI lawyers know when your intoxicated was on the rise, and thus argue that when you blew you were a .08, while you were driving, you were actually
below a .08 BAC.
If you blew at least a .08% but was
not intoxiated, call the New York DWI Lawyers at the Law Office of Richard Hochhauser, PLLC, for a free consultation to discuss your best defense.
Does the prosecutor need an expert to prove that I'm intoxicated?
No. The law in New York is well established that a "layman" or the average person, has the experience to tell whether someone is intoxicated. Consider being at a bar - you don't need any special training to determine whether someone there is intoxicated. Therefore, you will often find that the New York police will all describe the same boilerplate signs of intoxication: red and watery eyes, the odor of an alcholic beverage, unsteadiness, slurred speech.
Certainly, there are valid defenses to each of these allegations. For instance, red eyes can be caused by allergies; odor of alcohol can be caused by only one beer, unsteadiness would be expected from a police stop at 2 a.m., and the police are unfamiliar with your normal speech.
If you are alleged to exhibit these signs or others, call the Nassau County DWI Lawyer Richard Hochhauser to navigate your defense today!
What is Driving While "Impaired" in New York?
The definition of Driving While Impaired in New York is whether your consuption of alcohol actually impaired, to any extent, the physical and mental abilities which you are expected to possess in order to operate a vehicle as a reasonable and prudent driver.
The two key elements to this charge is that while the bar of impairment is quite law - "to any extent" the government must prove beyond a reasonable doubt that the alcohol actually impaired your abiity to drive. In other words, merely showing that you drank is not enough. There must be some nexus between the drinking and your ability to drive.
Call the Nassau County DWI Lawyers at Law Office of Richard Hochhauser, PLLC to evaluate your Driving While Impaired case.
Does the "odor of an alcoholic beverage" mean I'm intoxicated?
Absolutely not. While the smell of alcohol can be a factor that the police use against you, the odor alone is not enough to convict of driving while intoxicated. Importantly, it is impossible to tell how much a person drank from the odor of alcohol alone. It is also important to note that "alcohol" itself has no odor; rather, the alcohol beverages which we consome have a familiar odor.
If you are alleged to have been asked to submit to a breath test because you smell like alcohol, contact DWI attorney Richard Hochhauser for a free consultation.
Can I be charged with Driving While Intoxicated if my car was parked?
In New York, a person also OPERATES a motor vehicle when such person is sitting behind the wheel of a motor vehicle for the purpose of placing it in operation, and when the motor vehicle is moving, or even if it is not moving, the engine is running.
Thus, if the vehicle was not being driven at the time you were arrested, then the prosecutor must prove that you were either
previously driving while intoxicated, or that your
intent was to drive soon thereafter.
If you were charged with DWI and the car was parked, there are many defenses available to you. Contact Nassau County DWI lawyers at teh Law Office of Richard Hochhauser, PLLC.
If I blew over the limit, does that mean I was over the limit while I was driving?
Not necessarily. Even though you may blow a .08, that does not necessarily mean you were a .08 while you driving. Often times, one's blood alcohol content is still on the rise. Therefore, while you may have been a .08 at the police station, you also may have been below the limit while you were actually driving.
Cases such as these require a careful review of the timeline and when and how much you had to drink.
Contact Nassau County DWI Lawyer Richard Hochhauser to review your timeline.
Can I get a DWI in a parking lot?
Yes, as long as the parking lot has at least four parking spots.
Can I suppress the reading of my chemical breath test?
In New York, there are a number of ways to supress a chemical breath test and prevent it from being used at trial. The most common mechanism is to due a hearing where the officer has to testify that there was requisite probable cause to arrest you and request that you provide a breath sample.
If the officer lacked the requisite cause to ask you to blow, or to arrest you, then the breath reading would be considerd "fruit of the poiseness tree," and the government will not be able to use the reading against you.
To learn whether your breath reading can be suppressed, contact Nassau County DWI attorney Richard Hochhauser.
Can the police force me to give a breath test?
No. While there are consequences for refusing to take the breath test, you have a statutory right to refuse to take the test. If you refuse, the police cannot force you to give a sample absent a court order.
Contact the Valley Stream DWI Lawyers at the Law Office of Richard Hochhauser, PLLC to discuss your case.