New York DWI first offense

[imtom9930]

What is the name of your state? NY

I will try to summarize as best I can. Secondary to an ongoing domestic dispute, my ex and her new 'partner' had been looking for something to 'slip me up' with...and this week may have succeeded. After consuming 'a couple of beers (over a 3-4 hour period) I drove to meet the ex planning to drop my kids belongings off to her- we share custody and this was 'transition' day. As I pulled into park.... her' partner' pulls his car in between mine and hers (he'd been parked there in the lot), gets out, declares that I'm drunk (as if from 50 yards away he could discern such a thing), and that he intends to call the police and tell them so.
Rather than have to deal with his intimidation there in public (at the little league field) I chose instead to drive to their house instead. While en-route, 3 police cars appeared behind me.
Knowing this, I was extra careful not to do anything wrong...yet they pulled me over in front of their house...with She, He, and my children all there to see.
Apparently he had called them saying he'd observed me driving eratically...which is a bold faced lie (he was at the lot when I pulled in). The police officer claimed to have observed me fail to keep right (his 'probable cause') and proceeded to give me a field sobriety test (while all of them watched, my mkids very upset- as was I for them to see this. Intimidating to say the least. Long story short....I failed, was offered the 'opportunity' to take a breathalizer....which I refused (as I percieved myself as being 'rail-roaded'...he may be an ex cop himself, PBA sticker on the car etc). So, I was charged with DWI and given a public defender who I will not meet until my first hearing next week.
I am hoping that you might provide some insight as to what I can expect, and what I might try to fight these charges ? Does the fact that he 'called it in" after never having observed any erratic driving at all help ? They never would have been behind me had he not.
Will I get my license back (at least provisionally) at this first hearing ? Can I hope to get a deal ?

[paguy88]

first you say only 2 or 3 beer in 3 or 4 hours right? why refuse to take any breath test? no way if thats all you had to drink you would be over the limit. asuming you are a average size guy.

did you refuse the hand held device?

BTW you are not required to take a Field soberty test you hould have said no.

Apparently he had called them saying he'd observed me driving eratically...which is a bold faced lie (he was at the lot when I pulled in). The police officer claimed to have observed me fail to keep right (his 'probable cause')

the bold face lie is for the judge.

sounds like proable cause to me.

than again you need to tell these facts to your layer only they can give you a solid opinion.

good luck and keep us updated.

[imtom9930]

Yes, I believe it was a hand held device they were 'offering'...but I was concerned that I may put myself further into jeopardy should I blow a false positive....or if I'd miscalculated the time since I'd finished the last swig of beer.

I didn't know that I could refuse the field test...thought I'd do fine, regardless.
Between the 'audience' and a stiff wind that began to blow....I didn't do so well on the test....
didn't want to risk making things worse.

As to the 'bold faced lie' . He could not have seen me drive at all, as he was at the place (waiting for me) when I arrived. Are you saying that the judge might consider that as a reason to doubt the whole pretext of my being followed/pulled over (secondary to the ongoing domestic dispute... which he is now in the center of)?

I appreciate your insight. I've been assigned a public defender (am told their quite good up here). I'll be sure to give/get as much info as I can together....which is why I'm here. I appreciate all of the info/insight I can gather. Thanks !

[BigMistakeFl]

Any chance at all that you could possibly have consumed more than two beers? Could you have blown an actual positive, rather than a "false positive"? A couple (two) beers in a three to four hour period and your reading would have been almost non-existent.

The circumstances under which you were caught seem unfair, ugly to have been that cruel to do this in front of your kids. That was uncalled for, but it's not the first time I've heard of that happening.

You are probably facing first offense minimum penalties of a fine between $500 and $1,000 dollars, jail up to a year, (but not likely for a first timer), possibly community service, license suspension of no less than six months for refusal under NY's "Presumed Consent" law, and some classes.

[paguy88]

I didn't know that I could refuse the field test...thought I'd do fine, regardless.

one of the first things that goes is judgement... when you are impaired.

on the FST.. cops typically wills core you bad.. it's his/her judgement on if you passed or not.

sounds like your getting screwed.. to be honest.

again I have no idea what is going too happen, but best of luck.

[ConcernedinNY]

When you refuse a breathalyzer your license will automatically be suspended for 1 year. The same thing happened to me over 10 years ago.

You should be able to plead down from a DWI to DWAI (violation).

[BL]

The court will take the police officers word that you were to the right , giving cause to stop .

Refusal of a Breathalyzer is an automatic suspension/revocation of you license .

Where did you consume those ( always two beers ) ? Any witnesses ?

You may want to hire a good reputable local DWI attorney .

No one here knows the circumstances beyond what you posted .

You could possibly get a restricted license if convicted , you would have to pay for and take a class , fines .

Look up penalties for NY DWI . Search this site , it's been discussed before .

[sakura74]

I do not know how it is in different counties in NY but in my county from what I experienced at court the other day the judge took everyone's license as they were arraigned for their DWI and then also doled out conditional license paperwork at the same time depending on if the person had a job or not. My license was not taken because I was arraigned the same morning I was arrested and the troopers forgot to bring the actual report showing my BAC. Apparently they only get the one shot to take the license if you take the test. So now I will lose mine if and when I get convicted of something but not in the interim.

I know I had a question as to when they could actually take your license here in NY, at court or at conviction and apparently they can take it with the BAC report but since you refused you automatically lose yours.

If you are employed I think you will be able to get the conditional to go to work.

I had concerns about the Public Defender as well but the guy I got here is really good, I think they know as much if not more than any other DWI lawyer.

It's possible you can get a reduction if it's your 1st offense. Alcohol charges can't be reduced to anything but other alcohol charges though so even at best it will still be a DWAI if you are convicted.

I know others already said it but you probably would have been better off taking the test if you only drank what you said you did.

Good luck.

[imtom9930]

I appreciate all of your insights !
I will search this site further for more info.

Is their no logic to my thinking that the 'ex's' boyfriend (who set the series of events re: the police- in motion on fraudulent information... might be considered hostile in his intent ? He reported seeing me drive erratically which is simply not true. As events unfolded (as I said, in front of my children) the intimidation/anxiety level were enough to impair my judgement all by themselves. But the notion of a 'setup' was very much on my mind...hence my hesitation of
taking a breathalyzer. Had I blown a high number (even if mistakenly) would I not have sealed my fate ??

Again, this is all an extension of an ongoing domestic dispute. Does it make any sense at all to try and impress this fact upon the judge ?

I also received a notice of a second hearing re: having refused the breath test....any insights as to what this will entail, how I might best proceed ??

[BigMistakeFl]

The ex's boyfriend may have had his agenda, but he's a witness. Even if you removed him as a witness, the cop(s) will still say you drove eratically, smelled of alcohol, appeared impaired, failed the FST's, and so on and so on. The hostility of the boyfriend does not discount the other evidence which will be used in your prosecution.

[BL]

Originally Posted by imtom9930

I appreciate all of your insights !
I will search this site further for more info.

Is their no logic to my thinking that the 'ex's' boyfriend (who set the series of events re: the police- in motion on fraudulent information... might be considered hostile in his intent ? He reported seeing me drive erratically which is simply not true. As events unfolded (as I said, in front of my children) the intimidation/anxiety level were enough to impair my judgement all by themselves. But the notion of a 'setup' was very much on my mind...hence my hesitation of
taking a breathalyzer. Had I blown a high number (even if mistakenly) would I not have sealed my fate ??

Again, this is all an extension of an ongoing domestic dispute. Does it make any sense at all to try and impress this fact upon the judge ?

I also received a notice of a second hearing re: having refused the breath test....any insights as to what this will entail, how I might best proceed ??

You are most likely being charged with two counts of DWI , but I don't know why the second appearance . Could be pre-trial .

[imtom9930]

That's just my point...he was not a witness to anything when he 'called it in'...
He'd been sitting in wait for me to arrive (in a spot where he could not have observed anything).
You say two counts ?? Is there no making the argument that as an 'ex' cop himself (with a hostile agenda) set in motion circumstances that would otherwise never have unfolded ?

Also, are the factors at 'the scene' of any consequence ? (his glaring pressence, my kids in a distraught state....) as far as my being intimidated and distracted ?
Lastly... I have a perm foot injury (which causes me to 'painfully' mistep) as well as a degenerative inner ear condition (which causes problems with ballance, hearing, and speach).
Can these factors be employed in my behalf as reasons why I did not perform so well on the field exam ?

[BL]

Your lawyer can argue all these issues in court .

You keep going back to who called and why you think so .

It won't matter .

What matters is the police report , police testimony , and your defense .

[imtom9930]

Thanks BL...

I've never been in this situation before, and am quite distraught at the prospects that lie ahead.
I don't mean to grasp at straws, but hoping to gain as much insight from as many sources as possible. I thank you for yours.

I'm being represented by the public defender up here (who I'm told is very good).
Am most worried about the implications of the loss of my license (will I get it back at this first hearing do you think, at least provisionally?), and the possibility that what this jerk and my ex are really after is leverage in an upcoming custody action of some sort...ugh !!

We share physical custody at the moment, but I fear they'd like to build a case around the
alchohol' issue.... just to remind, this is my first offense (of any kind, for that matter).
I know this is the wrong forum for a question on this subject....but I'd appreciate your thoughts none the less.

[paguy88]

I would say you got yourself into this by drinking at some point before driving even if it was only a couple as you stated or he meaning your wifes boyfriend would not have had a leg to stand on by making that call to the cops.

You should not be picking up your kids after drinking anything.. that is a bigger crime getting a DUi with a kid in the car. Than just a regular DUI.

if you know they are looking for something againt you... you need to be more careful in the future.

Best of luck