The best time to have legal representation if arrested for driving under the influence of alcohol or drugs (DWI, commonly referred to as DUI) is immediately after the arrest of the motorist on the street and prior to any requests by the police to submit to any testing procedures to determine blood alcohol level or drug ingestion or impairment. Although there are various testing devices utilized by the police to determine this, the most commonly used ones in the metropolitan area are the Intoxilyzer and urinalysis testing.
Refusal to Submit to Chemical Testing
The decision whether or not to submit to such testing is a very important one which, depending upon all the facts and circumstances involved, can be very challenging for someone in police custody. There are benefits as well as drawbacks to submitting to such testing, and the key for an experienced attorney who is called upon to advise his or her client is to determine whether the drawbacks outweigh the benefits under the circumstances of the case.
On one hand , a positive test reading evidencing a high level of alcohol and/or drug ingestion can be strong evidence (although not dispositive) against the client and depending on the level involved can even lead to a higher charge (i.e. aggravated DUI ). However, a DWI refusal to take such test might deprive the police of such damaging evidence but then might be able to be used against the client as evidence of “consciousness of guilt.” Additionally, the motorist’s driving privileges are subject to revocation (and immediate suspension at arraignment in criminal court as well as after a subsequent DMV Refusal/Safety Hearing) if there is a finding of such refusal (assuming proper police procedures were followed).
If it is impractical to retain counsel immediately after the arrest, then it would be extremely wise to do so prior to the arraignment. At the arraignment, applications are made by the defense counsel for various relief, such as:
- Release from custody (if a satisfactory disposition is not available at such time).
- Challenging any suspension of the client’s driving privileges (depending upon the paperwork filed by the prosecutor)
- Requesting a hardship license (in the event the court is constrained to suspend the motorist’s license prior to any disposition).
Depending upon the circumstances, it might be the best strategy to negotiate a plea deal/settlement at the time of the arraignment, especially if the Court is inclined to issue a “20 day stay” of any license suspension or revocation which gives the client enough time to go to DMV to obtain a conditional license. This would ensure that the client would maintain at least limited driving privileges at all times.
In many cases, it is the best strategy to fight the charges and litigate the numerous issues that arise in DWI/DWAI prosecutions, such as:
- Whether the client “operated” a motor vehicle.
- Whether there was reasonable cause for the stop of the vehicle and arrest of the client.
- Whether the test results are admissible and/or reliable.
- Whether the client was impaired or intoxicated at the time of operation of the motor vehicle. 1
In view of the exposure to substantial penalties (civil, criminal and insurance-wise) that are involved in being convicted of a DUI offense, representation by experienced counsel is strongly recommended. To schedule your private legal consultation with New York DWI defense attorney Victor Knapp, Esq., call our law offices at (718) 263-9000, or contact us online.
1 In People v. Mertz , a seminal case in DUI Defense, Victor Knapp successfully argued before the New York Court of Appeals that the results of a blood alcohol test were not automatically dispositive of the defendant’s blood alcohol level at the time that he/she operated the vehicle.