DWI or DUI

No one expects to be arrested for DWI. It invariably comes as a surprise; many have described the experience as "surreal." Clients have compared it to a bad dream or even an "out-of-body-experience." Most never saw it coming. I listen as clients explain they have consumed alcoholic beverages while traveling that same route countless times without incident. How could this happen? Yet it has...

I can help. Really. Call 845.533.0265. As a former State Trooper who has made or participated in over 100 DWI arrests, I have literally been there. I know and understand the drill. From from both sides.

You may be surprised at the reported Blood Alcohol Concentration (BAC) level results. Is the BAC "instrument" or machine wrong? Well, perhaps! There is a significant BAC range or margin in the reading the machine provides. A range as much as a 20%! So perhaps the reading is not your true BAC. Or perhaps you did not take the test at all. A Refusal, as it is termed. Special rules apply with a Refusal. Both as such relates to your driver's license, and at trial (more on that below.)

Either way, your situation can seem daunting. Your driver's license is on the line. Perhaps you hold a professional state license for work. A nurse, a corrections officer. A security guard. Your career may be at stake. It is indeed a serious matter. A DWI arrest can impact you in so many ways. Directly and collaterally. It affects you, your family, your reputation; your relationship with friends. It can impact current or future employment.

You are a critical component of your DWI defense. You need to act quickly. Your failure to act can be detrimental to your case.

Take notes of what happened. Immediately. Where you were pulled over. Specifically. What the police officer asked you. What you responded to him through the entire night. What others in your car may have said. Or experienced. Did you blow into a small roadside hand held instrument (differing from the larger instrument at station?) Write down all of the events of the day and during the incident, all the way until you go home (include jail, a court arraignment if occurred day of arrest, etc.) Importantly, this includes statements the officer(s) may have made about the reason they stopped you (i.e.., what you did wrong; where they first observed you with any cause for the stop. Remember, where they first observed you might differ from what you thought or even where you were stopped or pulled over.

Where they were positioned or any information about the stop that was unrelated to your driving (e.g., Your car matched the description of a vehicle in a crime or similar statement that might provide an explanation for your traffic stop outside or independent of poor driving.) Statements made by the police are very important! Their statements, if any, to you are just as important as your statements (often Admissions) to them.

Were you asked to perform standardized Field Sobriety Tests where you were pulled over? Or somewhere else? What was the ground surface like in that location where you preformed the tests? Was there an incline? Was there traffic present as you performed the tests? How did you do? Were you facing the patrol vehicle's lights? Do you have a documented injury or medical issues? Write it down now! Before you forget. (Ask others who were present to write down notes of their exact experience, what they heard and observed, as well as any interaction with the police.)

Are you taking any form of medication? Are you under treatment for anything, whether physical or otherwise? Are you in rehab for an injury? Have you suffered or did you receive any diagnosis concerning a medical event? All of these areas, to name a few, can be critically important to your defense. Again, take notes of any medicine you took that day and even before. Advise your attorney of all of this.

When specifically did the officer place you under arrest? Was your car searched? Towed? How many officers were there? Write this down now. In addition, your notes should include each aspect of your movements the day you were arrested. This would include what you did in the hours before the police encounter and arrest; then what occurred just before and during the actual police stop. Also, what occurred afterwards.

Consider getting an independent blood test from a hospital if you provided a breath sample to the police and it is in proximity to your arrest time and Breathalyzer sample given. Ensure you have someone (sober) to bring you to the hospital or medical facility and then back home (assuming you did not provide a blood sample during the original arrest encounter.)

There are procedural and sometimes administrative aspects to your case such as in a DWI Refusal Hearing or arraignment paperwork that should be examined. Yes, you have the presumption of innocence. Yes, the state has the burden of moving forward with their case against you. Yes, the state has the burden of proving their case beyond a reasonable doubt. And, Yes, the state has to move forward and you don't have to do anything in terms of speaking up (literally.) Your failure to testify cannot be used against you. The state bears the entire burden of moving forward and proving their case. Still, if there is relevant evidence available to present from the defense side (typically without you testifying) we would want to know and present that.

While you, in large part, have little to no burden (save for a few areas such as where an Affirmative Defense is concerned such as an alibi of some sort), still you still need to act quickly in terms of ensuring that you protect yourself against the arm of the state and its evidence. Your best starting point should be to seek the advice of experienced legal counsel.

You are your attorney’s primary and best source of information. The details you provide will contribute significantly to the framework and underpinnings of your defense and strategy. While you have no burden or obligation to put on a defense, it is often essential that you do. Many things are critical. The government's paperwork -- what they plan to offer against you, is an important area. The officer's paperwork (e.g., notes, reports, etc.) is critical as well. It will be persued by your attorney. However, your version of the events is indispensible to your defense; and core to provide your attorney so that s/he can formulate a strategy to defend you. To assist in this area you should provide your attorney with as much information about the day you were arrested as possible. Again, you should immediately take notes to memorialize what occurred the day of the arrest. I cannot stress this enough

Invariably, the documents offered by police tend to solely describe observations or the facts as they see them; facts which tend to support the strengths of their case. That is why your version is so critical. Police notes and documents rarely chronicle areas that undermine their case. Police notes or reports rarely document areas that tend to disprove you were intoxicated. Police notes will rarely support your positives or what tends to counter their version of what occurred; namely the allegaion of intoxication. Invariably the police version almost always describes a "textbook" DWI arrest.

I formally pursue existing video and audio of the incident that may have been captured by the police cruiser dashboard camera. Beyond that, there may be public or private cameras or video that may have captured the incident. This should definitely be pursued. Thus, it is critical to identify and revisit the scene as soon as possible after the arrest to see if an independent recording of your “event” exists. As a former state trooper I am versed in criminal investigation, detecting evidence and its collection. I visit the scene before each trial.

You should consider counsel that focuses his or her practice in DWI and Traffic Defense. Counsel that has experience in handling DWIs.

Counsel that has been in DWI trials; defense attorneys who will consider not only the particulars and circumstances of your immediate case and how to put forth and best present your defense, but a lawyer who equally considers the entire, perhaps larger picture and protracted vision of who you are and what this arrest and potential outcome represents to your future.

Does your attorney know the basic but core terms or principles surrounding a DWI case and general “science” that is often critical to advancing a sound defense? A few basic areas your attorney should have familiarity with be able to intelligently, cogently respond to includes:

  • The “cause” ticket or violation levied in the initial stop and its impact on the case (ie, the observed reason you were stopped.)
  • Horizontal Gaze Nystagmus
  • Roadside field sobriety tests (fundamentally describe each test and how she or he would defend)
  • Probe whether he or she knows maximum number of hours to administer the breath test from time of arrest (ie, within 2 hours)
  • Probe if s/he knows the number of minutes the officer must continually observe the defendant prior giving test (ie, 20 minutes)
  • How burping and other gastro-intestinal type events can impact or stoke the breathalyzer or intoxilyzer test results
  • Ask about partition ratios (ie, what it means and the actual ratio -- 2100:1)
  • The concept of “mouth-alcohol” (and how it can impact test results)
  • “GERD” - Gastro Esophageal Reflux Disease (how this can impact case)

I visit every DWI scene before trial. I can’t help it, frankly. It is in my proverbial DNA.

As a former state trooper and state police investigator, I view the “scene” as a powerful, integral tool in preparing a defense. In researching any alleged criminal event, the "scene" or location where the incident occurred is critical! The Inniss Firm, PLLC approaches each DWI case with this in mind and using my formal law enforcement instruction, field experience in making DWI or DUI arrests and extensive legal training and acumen to protect your rights!

I know DWI and DUI. I have personally made or been involved in perhaps well over 100 DWI arrests. As a result of my police background I received significant instruction and training in intoxicated motorists. My training began over 30 years ago with formal DWI classroom instruction. Instruction areas included the physiological effects of alcohol, roadside field sobriety tests, the Breathalyzer instrument, relevant NYS Penal, Criminal Procedure and Vehicle and Traffic laws to name a few subjects. On the practical hands-on side, I have extensive experience working side-by-side with prosecutors in trial preparation and formal hearings. Trials and hearings in which I personally testified. I have testified in DWIs involving a single vehicle, to DUIs where more than one vehicle is involved, where injuries were involved, and where deaths have resulted in conjuction with a DWI event or collision. I have further worked with DWI industry professionals in the public and private sector.

From the perspective of a criminal defense attorney, I know how to attack the officer-administered roadside field sobriety tests. I know how to approach the the “horizontal gaze nystagmus” test in cross examination. My prior police background assists immeasurably in my current law practice as a criminal defense attorney. Put my expensive background and experience to work in your case.

Operating a motor vehicle is a privilege and not a right. You will hear that often. It is a true and accurate statement.

Upon obtaining your driver’s license you provided implied consent with your signature that you would submit to a breath, blood or urine test to determine the Blood Alcohol Concentration (BAC) if requested to provide one for a police officer. Your failure to submit to a breath or blood test to police when requested from a police officer could result in the immediate suspension of your driving privileges. In such cases and following your DWI arrest, your license will be taken by the presiding judge at arraignment. The seizure of your driver’s license, a "property right," is due-process protected and your protection is supported in the form of a Refusal Hearing. In a Refusal Hearing, a process and adjudication governed by the state DMV, the government has to demonstrate that certain officer-related protocols were properly undertaken to support the seizure of your driver's license and revocation of your operating privileges.

A Refusal Hearing (Hearing) is a civil proceeding under aegis of the state Department of Motor Vehicles. The Hearing is held before an Administrative Law Judge (ALJ) and you should expect the arresting officer to be present to provide testimony concerning the circumstances surrounding your arrest. The legal standard governing the burden of proof at the Refusal Hearing is “Clear and Convincing,” NOT proof beyond a reasonable doubt.

The purpose of the Refusal Hearing is to determine whether the arresting officer(s):

  • Had probable cause to initially stop your vehicle (leading to the DWI arrest)
  • Issued clear and unequivocal Refusal warnings to the operating motorist
  • That the motorist thereafter refused to submit to a blood or breath on their own free will

Some defense attorneys prefer a “Refusal Case” because there is no breath test revealing one's B.A.C. and, thus, no "science" to support the assertion that you were intoxicated. With a refusal, therefore, the case hinges more so on the officer's observations and admissions made (e.g., your alleged poor driving; how you performed roadside sobriety tests, and any alcohol consumption admissions made.) The difference between impairment and intoxication arguably is a matter of degree. The police do not have a baseline or starting point concerning your behavior or driving ability before the arrest encounter so that point alone can lessen an argument that your perceived driving aberration is attributable to alcohol consumption. A DWI is rarely open and shut. There are many avenues to pursue to have your position considered.

In a Refusal trial the prosecution is allowed to provide the jury with an extremely favorable instruction to their case – which is very harmful to the defense -- that the trier of fact -- ie, a jury or the judge -- can consider your refusal as “Consciousness of Guilt.” The instruction is often construed or viewed in the harshest light possible. It takes a skilled DWI attorney to overcome this instruction.

The “court” in the administrative Refusal Hearing must have the Report of Refusal, a report completed by the arresting officer before the Hearing can go forth. YOU SHOULD DEFINITELY HAVE AN ATTORNEY PRESENT AT THE REFUSAL HEARING!

From a defense attorney’s tactical perspective, the Refusal Hearing provides an opportunity to learn about the state’s case as offered by their primary witness, the arresting officer(s). The Hearing can "lock" in the officer's testimony; allowing defense counsel to learn the People's version of what occurred very early on. You might not otherwise have the information so early on and in such detail. The officer's version -- to learn it so early on at a Refusal Hearing -- at can be invaluable to your overall case preparation.

Generally speaking, I do not suggest the Defendant testify at the Hearing. It may be unknown whether the client will testify at trial given their presumption of innocence and the prosecution’s “burden” of going forward. There are no absolutes so this is a general position; decisions are made on the particulars and circumstances of each individual case.

If the police officer does not show up for the Hearing, it will be rescheduled and you (or the person arrested) should have your driver’s license privileges restored in the interim until the date of the rescheduled Hearing. The rescheduled Hearing can go forth without the officer being present. Hearsay is allowed in the Refusal Hearing and the rules of evidence are relaxed. The standard of proof is “Clear and Convincing.” This differs from the “proof beyond a reasonable doubt” trial standard.

There are a numerous collateral consequences to a DWI conviction that, depending on many factors, can impact your future. These areas should be factored into your overall case and decision-making strategy moving forward. For example, do you travel or plan future travel out of the country? Countries such as Canada harbor a dim view of visitors with DWI convictions – sometimes a pending DWI arrest without a conviction -- and might not allow you into the country (i.e., you may need to make advance application for country entry.) Is your pending DWI case a felony? Pleading guilty to a felony brings an entire area of further considerations to include preclusion to certain employment; your right to vote; obtaining a passport and a myriad of other areas.

Do you hold a professional or trade license governed by the state, such as a physician; attorney; teacher; real estate professional; security guard, or Chiropractor, to name a few? Even with a misdemeanor conviction, there may be state reporting requirements following arrest or conviction to the licensing board you need to contemplate; and to alert your attorney of. Perhaps you may have reporting requirements to your employer.

Other collateral areas whether you have or plan to secure life insurance; are a college student that will seek loans; or anticipate involvement, if not currently, in a child custody matter. The above represents only a few of the areas a DWI conviction can impact. The decisions made in your case should contemplate these and other areas. Your attorney should provide you with a well-rounded perspective of what you might face immediately or several years down the road, particularly in the overall conversation about whether to seek a plea or what a trial potentially risks.

The decisions you make surrounding a DWI should not be made flippantly or based necessarily on where you are currently in this stage of life. ­What are you future plans? You cannot “afford” to be shortsighted and hire an attorney who is not versed in this areas given the potential ramifications of what a DWI involves. Your future and that of your family – or the future of the family member, acquaintance or friend charged in the case – might depend on it.

Call for a case assessment! Put my experience to work for you! Dial: 845.533.0265 or M: 845.372.6968!