Dating back to the day I started law school, one of the most common inquiries I received from friends and relatives concerned being stopped for a DWI. I won’t editorialize about whether the genesis of the question was just morbid curiosity or legitimate personal concern, but either way it is clearly a topic that many people have at least wondered about. This is to be expected, as there are about 1,200 new DWI cases in Dutchess County alone every year. Given those numbers, and adding into that the frequent garden variety traffic stop, it is possible that these situations will be the only context in which an average person will experience an adversarial encounter with law enforcement. In light of that, I would like to share a few thoughts about the traffic stop, the breath test and consequences of refusal in order to clear up some common misconceptions. Be advised that the answers to these questions are intensely fact-dependent, and there is no one-size-fits-all answer to handling these situations. If you have been arrested for DWI, please contact myself or another attorney and schedule a consultation immediately.
To begin with, there are a number of legally significant events that occur before an operator is arrested for DWI. The first of these is the initial traffic stop. Unless a driver is stopped at a roadside checkpoint, the police encounter will begin with a driver being pulled over for committing some traffic infraction (speeding, failure to maintain lane, etc.). This event in and of itself does not give the officer authority to arrest a driver on suspicion of DWI. However, during the course of the driver’s interaction with the officer, the officer may develop sufficient probable cause to inquire further (in our example, probable cause that the vehicle is being operated in an intoxicated condition). At the point of the traffic stop, the officer will ask the driver for his license, registration and insurance information and ask general questions of the operator (where are you going? Where are you coming from? Do you know why I pulled you over?).
At this juncture, the officer will be looking for visible signs of intoxication – for example, slurred speech, inability to focus, odor of alcohol or drugs. Assuming the officer observes any of those signs of intoxication, s/he will likely ask the driver to step out of the vehicle for further inquiry. Here is where the officer will ask you to participate in various Field Sobriety Tests (or FSTs, e.g., One Leg Stand, Finger To Nose, Horizontal Gaze Nystagmus Eye Test) and possibly a roadside breath test. Generally, drivers are advised to decline performing the FSTs – they are notoriously unreliable and many individuals will fail them even while completely sober. There are no DMV consequences for refusing to perform FSTs.
The roadside breath test, however, is another matter. New York Vehicle and Traffic Law (VTL) § 1194(1)(b) provides that:
“Every person operating a motor vehicle which has been involved in an accident or which is operated in violation of any of the provisions of this chapter shall, at the request of a police officer, submit to a breath test to be administered by the police officer. If such test indicates that such operator has consumed alcohol, the police officer may request such operator to submit to a chemical test in the manner set forth in subdivision two of this section.”
Failure to comply with a request to perform a roadside breath test is a traffic infraction that comes with a fine and points on your driving record. Sometimes, attorneys will advise clients to refuse the roadside breath test, because the penalties are relatively minor when compared with those a driver will be facing if they are highly intoxicated. The roadside breath test is unreliable and inadmissible in court, however it can still be used to contradict your testimony at trial if a driver attempts to make the case that they had not been drinking prior to the stop.
If a driver refuses a roadside breath test or is over the legal limit (.08 BAC), they will be arrested and brought to the local police station or trooper barracks for further chemical testing. A refusal at this point carries heavier consequences. All New York drivers are “deemed to have given consent” to a chemical test when an officer has “reasonable grounds” to believe that a driver is operating a vehicle in an intoxicated condition. Whether or not the officer has “reasonable grounds” for such belief is based on the “totality of the circumstances” surrounding the stop. A refusal at this point, if sustained at a later DMV hearing, will result in a one-year revocation of a driver’s license. If an operator is highly intoxicated and that is confirmed by the chemical test (for example, if the results are above .18 and you are charged with Aggravated DWI), it is likely that there will not be an offer of a reduced charge (i.e., DWAI). Following a refusal, the operator’s license will be suspended at arraignment pending a refusal hearing at DMV (held within two weeks). Defendants do not have much success at these hearings – an attorney will make your case, but the DMV will likely sustain the one-year revocation.
Another note here – between arraignment and a driver’s first court appearance with his or her attorney, the driver’s license will be suspended pursuant to New York’s “prompt suspension” law. See NY VTL § 1193(2)(e)(7). At this point, the driver’s attorney has not yet had the opportunity to make an application for a hardship license, nor has a conditional license been issued. A defendant must make arrangements to be driven to and from work, school, or court or be prepared to use mass transit.
As I mentioned above, there are no hard and fast answers to how a driver should handle the DWI stop. You can present any five attorneys with the same set of facts, and they could give you five (or maybe six!) different answers as to how to proceed. Keep in mind that the State of New York, and specifically, the prosecutors in Dutchess, Orange and Ulster Counties, view drunk driving as a very serious offense. A defendant's focus following a drunk driving arrest should be how to best mitigate negative consequences as opposed to trying to get over on law enforcement.