X

DRIVING WHILE INTOXICATED (DWI)

Whether this is your first offense or you have been through the process before, if you have been charged with a DWI, you need to hire a lawyer immediately. At the very least, your driving privileges are at stake.  Experienced legal counsel may be able to save all or part of those privileges, as well as prevent you from having a criminal record.

With DWI law being a diverse, extensive and fact-specific area of law, no website can offer you all the information relevant to your specific case, nor can any web-based research be a substitute for the independent review of your case by an experienced attorney.  However, for a general overview, go to  DWI Charges, Penalties & Defenses.
  
DWI prosecutions and the law they utilize are different from other types of criminal law.  You need lawyers who are experienced in the law and procedure of DWI prosecutions.  Mr. Nobles and Mr. DeCarolis are both former prosecutors of the Felony DWI Bureau at the Monroe County District Attorney's Office.  Having tried hundreds of DWI cases in town and county courts, they have extensive experience with the laws and procedures of DWI arrest, testing, prosecution and sentencing.

 

WHY HIRE NOBLES & DECAROLIS FOR YOUR DWI DEFENSE

  • As experienced DWI lawyers, we will give you a reliable and accurate evaluation of your case.
  • We will present you and your case in the best possible light when requesting a reduction of your charge from the District Attorney's Office.
  • We will recognize the potential pitfalls of your case and at the same time build a strong defense around the weaknesses of the prosecutor’s case.
  • We will challenge and litigate any issues surrounding illegal police activity and the way evidence was collected against you, including your field sobriety tests, any statements you made and any BAC tests.  It is possible to have these items thrown out, effectively destroying or limiting the prosecution’s case.
  • We are seasoned trial lawyers, which is crucial if your case must go to trial. We will challenge the prosecution on their knowledge of the Rules of Evidence and New York State Criminal Procedure, requiring them to prove their case BEYOND A REASONABLE DOUBT.
  • If you plead guilty or are found guilty after a trial, we will work to present you in the best possible light to the judge who will ultimately decide your sentence.  There are many ways to show that your DWI was an isolated event, that you take it seriously and that it will never happen again.  Taking these steps is essential to obtaining the lowest and least restrictive sentence possible.
  • Lastly, whether your DWI arrest was the result of an isolated instance of bad judgment or an indication of a more serious alcohol or drug addiction, we can provide you with recommended resources for rehabilitation, counseling, or other services.

If you are charged with a DWI, or any other crime, which lawyer you choose is the most important decision you will make.  It can dictate how your case is handled, whether you are ultimately convicted, what punishment you receive, your future ability to obtain employment and even your freedom.  Make this decision carefully; call Nobles & DeCarolis for a free consultation today.


 

DWI CHARGES & PENALTIES

You can be charged with DWI/DWAI in New York in two different ways, and often both tests are utilized together:  

Blood Alcohol Content Test (BAC)
You can be charged with a DWI when a breath test reveals a Blood Alcohol Content greater than 0.08.  If a Blood Alcohol Content test results in a reading of 0.05 to 0.07, you will be charged with DWAI. This measurement is taken using a breathalyzer machine into which you exhale or “blow.” It can also be taken from your blood, if you are injured and go to a hospital.

Field Sobriety Tests
You can also be charged with a DWI/DWAI when the arresting officer forms an opinion that you are intoxicated or your ability is impaired, based on observations and your performance on Field Sobriety Tests (which commonly include: the alphabet test, walk and turn, counting from 1 to 20 and from 20 to 1, and the finger-to-nose test, among others).

DWAI - Driving While Ability Impaired
This is a less serious charge than Driving While Intoxicated.  DWAI is always a violation and does not go on your criminal record. The maximum sentence is 15 days in jail.  Probation is not a possible punishment.  The most common sanction is a fine of $300 to $500, along with required New York State surcharges.  Additionally, if convicted of DWAI, your license will be suspended (at least partially), generally for 90 days.  

DWI - Driving While Intoxicated. DWI can be either a misdemeanor or felony.  Both misdemeanors and felonies stay on your record for life.
 

Your first DWI, or the only one in the last 10 years, is a misdemeanor.  A misdemeanor conviction can carry a range of sentences from a $500 fine to a maximum of one year in county jail.  Probation is a common sentence in cases involving a car accident or a high BAC.  A misdemeanor DWI conviction will result in the loss of some driving privileges for at least six months.  

A DWI is a felony when you have a prior DWI conviction within the last 10 years.  A felony DWI can carry a range of sentences from a $750 fine to incarceration, with a maximum state prison sentence of seven years. Probation is also a very common sentence in felony DWI cases. Further, a felony DWI will also result in a suspension of some, possibly all, driving privileges for at least a year.  

If you have three or more alcohol related convictions (DWI or DWAI) in the last 25 years you face a mandatory five year revocation, and in some instances a lifetime revocation of your license.

 
DUI – Driving Under the Influence

Many states use this acronym for driving under the influence of alcohol, which may be a violation, misdemeanor or felony depending on the specific state and the facts of the case. In New York State there is no DUI charge, only DWI and DWAI as defined above.

 

DWI DEFENSES & NEGOTIATIONS

BURDEN OF PROOF
The prosecution must prove every element of a DWI, beyond a reasonable doubt.  
These elements include:
  1. That you were operating a motor vehicle;
  2. On a public highway (that means any public road);
  3. In an intoxicated condition;
  4. Due to the voluntary consumption of alcohol or drugs; and
  5. That the stop of the vehicle was lawful and not in violation of the United States Constitution or the laws of the State of New York.
DEFENSES - Ways to fight these elements
  1. Operation can be disputed if the car was not running, running but not moving, or if there was a motor vehicle accident prior to the arrival of the police.
  2. The public roadway provision is fairly clear, but also includes some parking lots or driveways, based on certain facts.
  3. Intoxication can commonly be challenged regarding the officer’s opinion, even if a breath and/or field sobriety tests have been obtained.  
    1. Field sobriety tests are not an exact science and leave much open to interpretation.  Judges and juries are charged with evaluating an officer’s opinion and making their own judgments about intoxication based on the officer’s testimony of the events as opposed to his/her opinion.
    2. Breath testing equipment is very temperamental, needs routine maintenance and the testing must be done according to strict guidelines. There is often a basis to challenge the accuracy of a breath testing instrument.
  4. Consumption is almost always voluntary, and thus consumption rarely comes into play, unless someone may have “spiked” your drink.
  5. An illegal stop of a motor vehicle is another common way to challenge and beat a DWI charge.  At a pre-trial hearing, the prosecution must prove beyond a reasonable doubt that the officer had a “reasonable suspicion” to stop the vehicle and “probable cause” to arrest you for a DWI.  If the prosecution fails to meet the requirements, all testimony regarding any breath test, field sobriety test and/or any statements will not be allowed to be used at trial, making the prosecution’s ability to prove the case almost impossible.
NEGOTIATIONS 
On a limited basis, negotiations with the District Attorney's Office may produce an offer to plead guilty to a reduced charge, generally a DWAI.  As former prosecutors, we know how to present your specific facts and circumstances in the best light when petitioning for a reduction.  While the decision is ultimately up to the client, we will also provide counsel as to whether we recommend pleading to a lesser charge or taking the case to trial. As experienced trial attorneys, we know which cases have a better chance in front of a judge or jury.