Arrested for .074 in NYC. DWI/DWAI

[NewYorkCity15]

Hi guys, I was pulled over for making an illegal u-turn (didn't see the sign) after having a couple beers earlier, while dropping friends off. I was not drunk and was fully aware of everything going on. After being asked I tell the officer that I had a couple beers and agree to take the breathalyzer. One of the officers then starts cursing at me because at first I had trouble blowing properly. They go on to state that if i blow over a .08 theyre taking me in, if under theyll let me go. After blowing I get arrested to which i ask to see the results or at least know what i scored, they wouldnt tell me and simply arrested me. At the precinct I take another breathalyzer and score a .073 and take the field sobriety tests with no problems. They still however booked me and all, and now im being charged with a DWI/DWAI. Some people Ive talked to wonder why I was even arrested in this case, but unfortunately I was. Anyone have any advice for me? Or know how much I would have to pay an attorney to represent me?

Thanks

 

[George1776]

OMG, this new format is a Hoover.

The 0.08 EtOH blood level creates a prima facia case for being DUI/DWAI.

One can be over or under the 0.08 level and be considered either as being DUI/DWAI or not being DUI...

The cops could have tested you in any event so I would not worry about them twisting you to take the test ~ they actually helped you out in this case (rare).

Cost for an attny (and you do need one) is unknown .. varies too much ..

You have a possibly winnable case but a tough one ...

 

[HighwayMan]

There is no such charge as DUI in New York State, "George".

To the OP: what were you charged with? Both DWI and DWAI? Two different charges?

You don't need to blow a .08 or higher to be convicted of DWI in New York State.

and don't assume you did well on the "field sobriety tests" because 1) you didn't take any, and 2) everyone who is intoxicated always thinks they did well - you cannot judge your own performance.

And you only took ONE breathalyzer test - at the precinct. The hand-held machine in the field is not a breathalyzer (actually NYPD uses the Intoxilyzer) and cannot be admitted as evidence in court.

Sounds like there may be a probable cause issue here - you may want to speak with an attorney.

 

[HighwayMan]

Of course, your perception of the events may not be complete or accurate. If the officer's probable cause is based totally on the PBT then I wouldn't expect much of a problem beating this.

If the officer(s) has other observations which led to your arrest along with the PBT then you will have a more difficult time.

Where did this occur? What borough? And do you know who stopped and arrested you? Highway Patrol, precinct sector, etc?

 

[NewYorkCity15]

Of course, your perception of the events may not be complete or accurate. If the officer's probable cause is based totally on the PBT then I wouldn't expect much of a problem beating this.

If the officer(s) has other observations which led to your arrest along with the PBT then you will have a more difficult time.

Where did this occur? What borough? And do you know who stopped and arrested you? Highway Patrol, precinct sector, etc?

Thanks for the replies but "George", how did i get helped out?
and "highwayman", i believe I am being charged with a DWI but im thinking thats so they could offer a DWAI at the arraignment (which they did), and i dont really see how they could charge me with a DWI being that I didnt blow above .08 and I was not acting drunk (my friends, who i was driving home agree with me that I didnt appear "drunk"). The odd thing is I believe they have on the police report that I refused the test which is totally untrue (my Public attorney at the arraignment said that the report said Id refused the test and made no mention of the .073... she never explained if that was ever taken care of). This is also possibly why im officially being charged with a DWI. And by them having probable cause, do you mean that they thought I was acting drunk? Unless the illegal U turn is probable cause I cant see why. Also i did take the sobriety tests at the precinct.
As far as the officers who arrested me, i dont know what their names are (forgot the arresting officers name, the other 2 im not sure of) but they are from the 61 precinct.

Thanks again

 

[Billy_Tompson]

Why did they charge you then if there is no way they can get a conviction? Go see a lawyer.

 

[CdwJava]

Hi guys, I was pulled over for making an illegal u-turn (didn't see the sign) after having a couple beers earlier, while dropping friends off.

So, the detention was perfectly legal, then. This is the first area of attack by a defense attorney.

I was not drunk and was fully aware of everything going on.

That's just grand. However, one does not have to be "drunk" to be impaired. In fact one can believe they are just fine and still be impaired. Judgement is generally the first thing to go when one is impaired.

After being asked I tell the officer that I had a couple beers and agree to take the breathalyzer. One of the officers then starts cursing at me because at first I had trouble blowing properly.

They probably believed that you were not blowing properly. Many people expel air out of the side of their mouths, inhale (suck), or try a number of tricks that they believe will fool the machine (but will not).

They go on to state that if i blow over a .08 theyre taking me in, if under theyll let me go.

That's silly. That's a great way to get someone to decline to blow. In my state you are not required to provide a breath test in the field unless you are under 21. Were you under 21?

If you are not required to take the field test in NY, then you might have been well advised not to blow and let them make the decision to arrest using what they had already observed.

After blowing I get arrested to which i ask to see the results or at least know what i scored, they wouldnt tell me and simply arrested me. At the precinct I take another breathalyzer and score a .073 and take the field sobriety tests with no problems.

What makes you think you passed the FSTs? A great many people think they "passed" but did not.

And didn't you take the FSTs in the field? Did they make you take them ONLY at the station? That's silly to me because many of the questions might then require Miranda as a result of the custodial situation.

If you cannot afford an attorney, one should be appointed for you.

Understand also that one CAN be impaired below .08.

The two key areas of attack in an impaired driving case is the reasonable suspicion for the initial detention or contact, then the probable cause to support the arrest. If the defense cannot get the matter tossed or suppressed on one of those issues, it is usually a plea deal.

 

[Billy_Tompson]

There is no such charge as DUI in New York State, "George".

I understood what he meant...you did not? Sound advice & good info on field testing equipment....odd that they would even use any such equipment then.

 

[dave33]

Everyone who is arrested for dwi "fails" the field tests.
You will need to wait and find out exactly what is on the police report.
If the report says you were under, they would need other evidence. That
would be failed sobriety tests.

You will just have to wait for the official report. You do not yet know what
you will dispute.

 

[NewYorkCity15]

So, the detention was perfectly legal, then. This is the first area of attack by a defense attorney.


That's just grand. However, one does not have to be "drunk" to be impaired. In fact one can believe they are just fine and still be impaired. Judgement is generally the first thing to go when one is impaired.


They probably believed that you were not blowing properly. Many people expel air out of the side of their mouths, inhale (suck), or try a number of tricks that they believe will fool the machine (but will not).


That's silly. That's a great way to get someone to decline to blow. In my state you are not required to provide a breath test in the field unless you are under 21. Were you under 21?

If you are not required to take the field test in NY, then you might have been well advised not to blow and let them make the decision to arrest using what they had already observed.


What makes you think you passed the FSTs? A great many people think they "passed" but did not.

And didn't you take the FSTs in the field? Did they make you take them ONLY at the station? That's silly to me because many of the questions might then require Miranda as a result of the custodial situation.

If you cannot afford an attorney, one should be appointed for you.

Understand also that one CAN be impaired below .08.

The two key areas of attack in an impaired driving case is the reasonable suspicion for the initial detention or contact, then the probable cause to support the arrest. If the defense cannot get the matter tossed or suppressed on one of those issues, it is usually a plea deal.

im over 21. I believe if you decline to blow there is a 1 year suspension of your license? and i didnt take the FST in the field, just the station, and im pretty sure i was only read my miranda rights before taking the tests. how can i be sure that i passed the fst's? i guess i cant say for sure but i felt sober doing it all and didnt see any problems. and as far as a plea deal, if it was plea to a disorderly conduct that would be good...

 

[HighwayMan]

and "highwayman", i believe I am being charged with a DWI but im thinking thats so they could offer a DWAI at the arraignment (which they did), and i dont really see how they could charge me with a DWI being that I didnt blow above .08 and I was not acting drunk (my friends, who i was driving home agree with me that I didnt appear "drunk").

You need to find out what you are actually charged with. It's common to be offered a DWAI as a plea down from a DWI. You can easily be charged with a DWI below a .08 - happens all the time when someone refuses a breath test. Observations can be a powerful factor.

And don't listen to your friends. They may see things very differently than the arresting officer.

The odd thing is I believe they have on the police report that I refused the test which is totally untrue (my Public attorney at the arraignment said that the report said Id refused the test and made no mention of the .073... she never explained if that was ever taken care of).

This is NYPD. There isn't much of a "police report". For the benefit of everyone out there, NYPD basically doesn't do reports to speak of. Officers will prepare a complaint report worksheet (aka a "61") which is then entered into the computer by a civilian administrative aid. Reports generally consist of just a few lines.

And by them having probable cause, do you mean that they thought I was acting drunk? Unless the illegal U turn is probable cause I cant see why.

The probable cause I am referring to is for the arrest - not the stop.

Also i did take the sobriety tests at the precinct.

No you didn't. The "tests" you took are for the benefit of the video - they are not standardized field sobriety tests. Your attorney will want a copy of that tape to view. That will tell her alot.

 

[HighwayMan]

I understood what he meant...you did not? Sound advice & good info on field testing equipment....odd that they would even use any such equipment then.

No, not all of it. He seemed to get DWI/DUI/DWAI confused somewhat.

While in some cases it may be picking a nit, there is no such charge as "DUI" in New York State.

 

[HighwayMan]

Everyone who is arrested for dwi "fails" the field tests.

False. That's a ridiculous statement because SFST tests are rarely, if ever, given in NYC. Most NYPD officers don't know a thing about field tests.

NYPD is just NOW starting to train >some< members of the Highway Patrol in SFST. This is still very much an unknown thing in NYC.

 

[HighwayMan]

If you are not required to take the field test in NY, then you might have been well advised not to blow and let them make the decision to arrest using what they had already observed.

Carl, no type of field testing is mandatory in New York State.

And didn't you take the FSTs in the field? Did they make you take them ONLY at the station? That's silly to me because many of the questions might then require Miranda as a result of the custodial situation.

Again, I'll bet a month's pay (plus overtime) that there were no field tests given. Upon arrest for a DWI, a defendant is brought to a borough IDTU (Intoxicated Driver Testing Unit) where two Highway Patrol officers respond to do an Intoxilyzer test and what are loosely referred to as "field tests". All of the proceedings are videotaped. In many cases, the probable cause for a DWI arrest is very weak and depends heavily on a PBT, which is ridiculous but that's how life is in the big city.

The two key areas of attack in an impaired driving case is the reasonable suspicion for the initial detention or contact, then the probable cause to support the arrest. If the defense cannot get the matter tossed or suppressed on one of those issues, it is usually a plea deal.

From the OP's somewhat vague and biased description of the events, there was probable cause for the initial stop, but the PC for the arrest seems, well, pretty weak - which is a common issue in NYC.

His attorney needs to get a hold of the arresting officer's complaint report and memo book (which will probably be useless) as well as the IDTU video. If the video shows an impaired individual then the prosecution will infer that is what the officer saw in the field. If the tape shows otherwise, then a good attorney should be able to get the charge dropped entirely.

Very often, PC for a DWI arrest consists of smelling the odor of alcoholic beverage on the breath after a legitimate traffic stop or accident, followed by a "hey blow into this PBT". How this flies I don't know, but it's been the norm for so many years I suppose the courts tend to be liberal about it. In NYC we, as police, rarely SEE any criminal case actually prosecuted so how the system works post-arrest is an unknown most of the time.

 

[HighwayMan]

im over 21. I believe if you decline to blow there is a 1 year suspension of your license?... and as far as a plea deal, if it was plea to a disorderly conduct that would be good...

Minimum 6 month suspension. You would have been suspended initially prior to a refusal hearing. From everything you've said it doesn't seem like this was recorded as an official refusal. If it was then you will be scheduled for a refusal hearing - this is a DMV administrative hearing that takes place at 19 Rector Street in Manhattan.

A refusal hearing addresses three issues:

1) that there was a legitimate reason for the officer's contact with you (traffic stop, accident, etc)

2) that there was, in fact, probable cause for the arrest on the charge of DWI

3) that you did, in fact, refuse

Number 2 seems to be a big issue. But since the prosecution actually has a BAC number for you this tells me that a proper reading was obtained and that's not a refusal.