The Basics of DWI The Basics of DWI DefenseDefense

By:Dennis Nave, Esq.

“No person shall operate a motor vehicle while in an intoxicated

condition.”

What are the elements that the government needs to prove beyond a

reasonable doubt to convict?

VTL §1192(3): “Driving While Intoxicated”

The StopThe Stop Parked CarParked Car Citizen Complaint/Anonymous Tip Citizen Complaint/Anonymous Tip Traffic Infraction Traffic Infraction Accident Accident Checkpoint – Specific RulesCheckpoint – Specific Rules https://www.youtube.com/watch?v=Y

qEXTVe7MCQ

Elements of a DWIElements of a DWI Operation or IntentOperation or Intent Motor VehicleMotor Vehicle Intoxicated Condition Intoxicated Condition Public HighwayPublic Highway

Field Sobriety TestsField Sobriety TestsStandardized Standardized

Horizontal Gaze Nystagmus (HGN)Horizontal Gaze Nystagmus (HGN)

Walk and TurnWalk and Turn

One Leg StandOne Leg Stand

Field Sobriety TestsField Sobriety Tests Finger to NoseFinger to Nose RhombergRhomberg Finger CountFinger Count AlphabetAlphabet CountingCounting Pre-Screen Breath Test (PBT)Pre-Screen Breath Test (PBT)

Miranda WarningsMiranda Warnings

DWI Refusal Warnings DWI Refusal Warnings 1. You are under arrest for driving while intoxicated.

2. A refusal to submit to a chemical test, or any portion thereof, will result in the immediate suspension and subsequent revocation of your license or operating privilege, whether or not you are found guilty of the charge for which you are arrested.

3. Your refusal to submit to a chemical test, or any portion thereof, can be introduced into evidence against you at any trial, proceeding, or hearing resulting from this arrest.

4. Will you submit to a chemical test to determine the alcohol or drug content of your blood?

The BreathalyzerThe Breathalyzer How Does it Work?How Does it Work? 20-Minute 20-Minute

Observation PeriodObservation Period What Causes it to What Causes it to

Render an Render an Inaccurate Result?Inaccurate Result?

Mouth AlcoholMouth Alcohol Other substances Other substances

with a similar with a similar molecular structuremolecular structure

Blood TestBlood Test Proper ProcedureProper Procedure Examining the ChartsExamining the Charts

Pros and Cons of Refusing Pros and Cons of Refusing

Pros Pros No scientific evidence No scientific evidence

of your blood alcohol of your blood alcohol content content ““BACBAC”” exists exists for your criminal case for your criminal case

Potentially one less Potentially one less misdemeanor charge misdemeanor charge

Cons Cons If you lose your DMV If you lose your DMV

refusal hearing, you refusal hearing, you will lose your license will lose your license for one year, for one year, regardless of whether regardless of whether you are convicted you are convicted

Potential to adversely Potential to adversely affect plea affect plea negotiations with the negotiations with the District AttorneyDistrict Attorney

OffensesOffensesDWAI (Violation)DWAI (Violation)

Operating while ability to drive is impaired to ANY Operating while ability to drive is impaired to ANY EXTENT by the voluntary consumption of alcoholEXTENT by the voluntary consumption of alcohol

A blood alcohol content above .05 but below .08 A blood alcohol content above .05 but below .08 is considered per se evidence of impairmentis considered per se evidence of impairment

DWI (Misdemeanor)DWI (Misdemeanor) § 1192 (2)§ 1192 (2)

No person shall operate a motor No person shall operate a motor vehicle having a blood alcohol vehicle having a blood alcohol content of .08 or abovecontent of .08 or above

DWI Common LawDWI Common Law(Misdemeanor)(Misdemeanor)

§ 1192 (3)§ 1192 (3) No person shall operate a motor vehicle while in No person shall operate a motor vehicle while in

an intoxicated conditionan intoxicated condition Jury instructions generally require a person’s Jury instructions generally require a person’s

ability to operate a motor vehicle be substantially ability to operate a motor vehicle be substantially impaired by alcoholimpaired by alcohol

No BAC result is necessary for a conviction, but if No BAC result is necessary for a conviction, but if a test is available, it may be considereda test is available, it may be considered

Aggravated DWI (Misdemeanor)Aggravated DWI (Misdemeanor)§ § 1192 (2)(a)1192 (2)(a)

No person shall operate a motor No person shall operate a motor vehicle having a blood alcohol vehicle having a blood alcohol content of .18 or abovecontent of .18 or above

Driving While Ability Impaired by Drugs Driving While Ability Impaired by Drugs (Misdemeanor)(Misdemeanor)

§ 1192 (4)§ 1192 (4) No person shall operate a motor vehicle No person shall operate a motor vehicle

while the person’s ability to operate such while the person’s ability to operate such vehicle is impaired by the use of a drug as vehicle is impaired by the use of a drug as defined in this chapterdefined in this chapter

Must be a drug listed in Public Health Law Must be a drug listed in Public Health Law § 3306§ 3306

Driving While Ability Impaired Combined Driving While Ability Impaired Combined (Misdemeanor)(Misdemeanor)§ 1192 (4)(a)§ 1192 (4)(a)

Driving While Ability Impaired by the Driving While Ability Impaired by the Combined Influence of Drugs, or of Combined Influence of Drugs, or of Alcohol and Any Drug or DrugsAlcohol and Any Drug or Drugs

Special CircumstancesSpecial Circumstances Boating While IntoxicatedBoating While Intoxicated Commercial VehiclesCommercial Vehicles Underage DriversUnderage Drivers Aggravated Unlicensed OperationAggravated Unlicensed Operation Attempted DWI is not legally cognizable offenseAttempted DWI is not legally cognizable offense

Driving While Intoxicated as a FelonyDriving While Intoxicated as a Felony

A DWI can be charged as a felony if the A DWI can be charged as a felony if the individual has a prior Driving While individual has a prior Driving While Intoxicated conviction within the past 10 Intoxicated conviction within the past 10 yearsyears

One DWI conviction within the past 10 years One DWI conviction within the past 10 years results in DWI charges as a Class E Felonyresults in DWI charges as a Class E Felony

Two or more DWI convictions within the Two or more DWI convictions within the past 10 years results in DWI being charged past 10 years results in DWI being charged as a Class D Felonyas a Class D Felony

Driving While Intoxicated as a FelonyDriving While Intoxicated as a Felony

Prior conviction for a DWAI is Prior conviction for a DWAI is insufficient as a predicate for a insufficient as a predicate for a felony DWI chargefelony DWI charge

ForfeitureForfeiture Out of state convictions as Out of state convictions as

predicatespredicates Combined with AUO 1Combined with AUO 1stst

Driving While Intoxicated as a FelonyDriving While Intoxicated as a Felony

A DWI can be charged as a felony if A DWI can be charged as a felony if the individual was driving with a the individual was driving with a child, age 15 or younger, in the carchild, age 15 or younger, in the car

This is also known as This is also known as LeandraLeandra’’s Laws Law

Operating a Motor Vehicle after Having Consumed Alcohol; under the Age of Twenty-One

OperateOperate Valid Chemical Test request Valid Chemical Test request Under 21 at the time of operation Under 21 at the time of operation Was there a valid test Was there a valid test .02 to a .07.02 to a .07 Lawful Stop Lawful Stop

Operating a Motor Vehicle after Having Consumed Alcohol; under the Age of Twenty-One

This is adjudicated through the DMV, This is adjudicated through the DMV, meaning this is a civil penaltymeaning this is a civil penalty

Penalties: 6 month license Penalties: 6 month license revocation and a $125 fine revocation and a $125 fine

You have been arrested, now what?You have been arrested, now what?

Tickets issuedTickets issued Arraignment – SSP, Not Guilty Pleas, BailArraignment – SSP, Not Guilty Pleas, Bail Discovery Process, Experts, InvestigationDiscovery Process, Experts, Investigation Evaluation Evaluation Defenses?Defenses? Plea bargaining Plea bargaining OfferOffer Motions/Hearings/Trial Motions/Hearings/Trial

MotionsMotions Suppression of EvidenceSuppression of Evidence

Reasonable Suspicion for the Stop (Ingle Reasonable Suspicion for the Stop (Ingle Hearing)Hearing)

Probable Cause for the Arrest (Dunaway Probable Cause for the Arrest (Dunaway Hearing)Hearing)

Statements (Huntley Hearing)Statements (Huntley Hearing) Sandoval / Ventimiglia / Molineaux HearingsSandoval / Ventimiglia / Molineaux Hearings Motion to CompelMotion to Compel Motion to DismissMotion to Dismiss 30/30 Motion30/30 Motion Purpose of HearingsPurpose of Hearings

SentencingSentencing Driving While Ability ImpairedDriving While Ability Impaired

$300-$500 Fine$300-$500 Fine Up to 15 Days in Jail for 1Up to 15 Days in Jail for 1stst Offense Offense

Misdemeanor Driving While IntoxicatedMisdemeanor Driving While Intoxicated Up to $500-$1000 FineUp to $500-$1000 Fine Up to 1 year in JailUp to 1 year in Jail 3 years Probation3 years Probation Split Sentence Split Sentence (max of 60 days in jail w/ probation)(max of 60 days in jail w/ probation) Ignition Interlock Device (IID)Ignition Interlock Device (IID)

SentencingSentencing Aggravated Driving While IntoxicatedAggravated Driving While Intoxicated

$1000-$2500 Fine$1000-$2500 Fine Up to 1 year in JailUp to 1 year in Jail 3 Years Probation3 Years Probation Split SentenceSplit Sentence IID IID

SentencingSentencing Felony Driving While IntoxicatedFelony Driving While Intoxicated

FineFine $1000-$5000 for a Class E Felony$1000-$5000 for a Class E Felony $2000-$10000 for a Class D Felony$2000-$10000 for a Class D Felony

PrisonPrison 1 1/3 to 4 years for a Class E Felony1 1/3 to 4 years for a Class E Felony 2 1/2 to 7 years for a Class D Felony2 1/2 to 7 years for a Class D Felony

5 years Probation5 years Probation Split Sentence (Max of 6 months Jail w/ Split Sentence (Max of 6 months Jail w/

Probation)Probation) IIDIID

License ConsequencesLicense Consequences DWAI Conviction DWAI Conviction DWI Misdemeanor DWI Misdemeanor Aggravated DWI (Misdemeanor)Aggravated DWI (Misdemeanor) DWI FelonyDWI Felony Underage DriverUnderage Driver Post-Conviction Conditional LicensePost-Conviction Conditional License Commercial Drivers License (CDL)Commercial Drivers License (CDL) The Impaired Driver Program (IDP)The Impaired Driver Program (IDP)

NYS Department of Motor VehiclesNYS Department of Motor Vehicles

Driver Responsibility Assessment Driver Responsibility Assessment SuspensionSuspension RevocationRevocation Other consequences for repeat offendersOther consequences for repeat offenders

5/5- five year suspension, five year restricted 5/5- five year suspension, five year restricted use (when three or four alcohol related use (when three or four alcohol related driving convictions)driving convictions)

Lifetime revocation- five or more alcohol Lifetime revocation- five or more alcohol related driving offenses within last 25 yearsrelated driving offenses within last 25 years

Collateral Consequences Collateral Consequences Canada and International Travel Canada and International Travel Car Insurance Car Insurance Criminal Record Criminal Record Effect on Professional Licenses Effect on Professional Licenses

My contact information:

Dennis Nave, Esq.315-200-1429

269 West Jefferson Street. Syracuse, New York 13202