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Written by

Marc R. Pallozzi, Esq., Matthew J. Chauvin, Esq.

Ianniello Chauvin, LLP |

Driving While Intoxicated, or DWI, is a crime in New York.  Most people know that.  In fact, most reading this article probably know someone who has been arrested and charged with DWI.  I once heard it referred to by a police officer as “the common man’s crime.”  And to a great extent, that is an accurate statement.  Most people also associate DWI with the term “drunk driving.”  But a person does not need to be drunk in order to be charged with DWI.  Most people further associate DWI with blowing into a breathalyzer.  But a person does not need to blow into a breathalyzer to be charged with DWI.  Most people think consuming water, or coffee, or food, will help sober them up enough to drive after having a couple drinks.  But – you guessed it – these things do not work either.   

While most people seem to “know” a lot about DWIs, this article is intended to provide facts that most people aren’t aware of.    


In its most basic sense, DWI is being intoxicated and driving a car, at the same time.  The term “intoxicated” is defined as consuming alcohol to the point where you are no longer capable of employing the physical and mental abilities expected when operating a car like a reasonable and prudent driver. That’s what Vehicle and Traffic Law § 1192(3) says, but what does it actually mean?  There is no one size fits all formula for becoming intoxicated.  Everyone is impacted differently by alcohol.  And, unfortunately, the only way to know how intoxicated you are is to submit to some type of test, like a breathalyzer.  Nevertheless, a person does not have to submit to a breathalyzer in order to be charged or found guilty of DWI.  In fact, testimony from a police officer about a person’s condition is more than sufficient to secure a conviction at trial.  Was the driver swerving all over the road, or slurring their speech, or stumbling? Did they smell of an alcoholic beverage, did they make admissions to consuming alcohol before driving, were their eyes glassy and bloodshot?  All of these things can be used against a person in a DWI arrest.  Officers are trained to administer field sobriety tests to determine, when coupled with observations like those listed above, in the Officer’s opinion a person is intoxicated.  


Standardized field sobriety tests are a series of three divided-attention tests designed, when properly administered, to accurately determine whether someone is at or above the legal threshold of intoxication.  These tests include the Horizontal Gaze Nystagmus (HGN), the Walk & Turn (W&T), and the One Legged Stand (OLS).  Officers are trained to evaluate performance using a series of clues, or observations about the driver when they perform the tests. Two or more clues on any of the tests is a failing score. The HGN is a test where a police officer holds a pen in front of your eyes and asks you to follow the pen side to side with your eyes and your eyes only.  The officer is looking for nystagmus, or the involuntary bouncing of the eye which can be caused by the presence of alcohol in one’s system.  During the W&T a you’ll be asked to walk a straight line of heel to toe steps, turn around, and walk back.  The OLS requires you to stand on one leg, point your toe on the opposite foot and count to thirty.  While these tests may seem simple, they are much more difficult than they appear.  They are being administered on the side of busy roads, typically at night, often times in the cold, under highly stressful circumstances to the average person.  A driver’s performance on these tests also – to a great extent – determines whether they will be driving home that night or getting a ride in the back of a patrol car. 


A breathalyzer as most people understand that term is a handheld device that measures a person’s blood alcohol level by using a breath sample.  You blow into the device and it reads back a number.  This device is usually administered on the side of the road by a police officer.  Contrary to what most people understand about DWIs, though, the reading this device provides cannot be used against a person in a DWI prosecution.  The handheld devices are not calibrated, nor are they that accurate.  What they can be used for, however, is to say “yes, a person had alcohol on their breath,” or “no, there was no alcohol.”  A driver is not obligated to submit to a breathalyzer on the side of the road.  The consequence for not submitting to one is a 2-point traffic ticket.  This is not the same thing as refusing to submit to a chemical test. 


A chemical test is a calibrated, scientific instrument used to determine the alcohol content of a person’s blood.  This is typically done in one of two ways: a much larger machine back at the police station, or a blood sample taken by a medical professional.  A person arrested on suspicion of DWI may be offered either choice, but only after they have been arrested.  Prior to submitting to a chemical test, a driver will typically be read a series of warnings called DWI Refusal Warnings.  This is because a failure to submit to a chemical test may result in the automatic revocation of your driver’s license, and the law requires you to be made aware of that consequence.

Contrary to popular belief, driving is a privilege, not a right.  When you become a licensed driver through DMV, you agree to be bound by the rules and regulations of DMV, whether you like it or not.  Contained within those regulations are the consequences for refusing to submit to a chemical test, which can be a one-year revocation of your driver’s license. Drivers who refuse to submit to a chemical test are entitled to a hearing in front of a DMV Administrative Law Judge.  If the driver loses that hearing, their license is revoked.  If the driver wins that hearing, their license is reinstated. 

If a driver submits to a chemical test, that result will be used against them, and if that result is a .08 BAC or higher, it results in a separate criminal charge, which does not require any proof whatsoever that the person’s driving was actually affected at all by consuming alcohol or that they exhibited any characteristics associated with being intoxicated.  Yes, you can be convicted of DWI without being drunk.  As stated above, alcohol affects everyone differently. You may “feel” fine, you may even be acting fine, but if your blood alcohol level comes back at a .08 BAC or higher, you are legally intoxicated.  


There are serious consequences if you are convicted of a DWI.  As indicated above, DWI is a crime.  A first time offender convicted of DWI has been convicted of an unclassified misdemeanor, which carries with it up to a one-year jail sentence.  Additionally, those convicted of a first-time DWI will typically be required to pay a fine at or around $1000, attend a Victim Impact Panel, participate in a seven-week course through DMV called the Impaired Driver Program, get hit with a $750 assessment fee through DMV, lose their license, and often times lose their auto insurance.  A second conviction in a ten-year window is a Class E Felony.  The consequences of a felony DWI include up to 4 years in state prison, higher fines, and longer revocation periods.  Three convictions in a 10 year window is a Class D Felony, which carries even higher fines, potentially lifetime driver’s license revocation, and up to seven years in state prison. If you drive intoxicated and cause the death of another person, you can receive up to a 25 year prison sentence.  In some extreme cases, you can be convicted of murder and spend 25 years to life in prison. 


In all our years of searching and training, we have found only one thing that will sober up an intoxicated person.  It is not water, it is not coffee, it is not eating a good meal before consuming alcohol.  Indeed, none of those things will help lower your BAC.  The only thing in the world that will help sober up a person who is intoxicated is time.  Your body needs to be able to process the alcohol that has been consumed, and there is no way to expedite that process.  Your body needs time.  The more alcohol, the more time.  You may help reduce the effects of a hangover by drinking water.  You may give yourself a little bit more energy to focus by drinking coffee.  You may feel less dizzy or tired by eating a good meal.  But you are doing nothing to reduce your BAC.  Time is the only way to bring that number down. 


DWIs are always complicated.  In fact, they are the most complicated category of criminal cases that exist in this state.  There are many moving parts in the criminal court and with DMV, including both scientific and legal analysis, and the consequences can be severe.  This is why it is important to have the name and number of an experienced DWI attorney saved in your phone.  Experienced DWI attorneys know how to protect your rights and interests before you get charged.  While we hope none of our readers are ever charged with DWI, we are ready and prepared to protect you should our phone ring.