Frequently Asked Questions
Q. Why did I get two separate tickets for DWI?
A. Like many states, New York has two separate charges pertaining to Driving While Intoxicated. They are both found under Vehicle and Traffic Law s. 1192. If you took a breath test and your blood alcohol content (BAC) was. .08% or more, then you will be charged with what is called DWI per set, Vehicle and Traffic Law s. 1192 (2). You will also be charged with what attorneys refer to as “Common Law DWI” under Vehicle and Traffic Law s. 1192 (3) which makes it illegal to operate a motor vehicle while you are intoxicated. Under this section, the People must prove beyond a reasonable doubt that you lacked the necessary physical and mental skills to drive an automobile as a reasonable and prudent driver would. To prove intoxication without the benefit of a breath or blood test, the District Attorney will have the police officer testify concerning his or her observations of the odor of alcohol on your breath, your glassy eyes, impaired speech, impaired motor coordination and the fact that you failed one or more Field Sobriety Tests such as Gaze Nystagmus, walk and turn, one leg stand, finger to nose or reciting the alphabet. Think about it, before there was a breath test or a blood test to determine your blood alcohol, this is how people were convicted of DWI.
Q. My best friend is a cop. He told me never take a breath test. Is this true?
A. No, this is not true. If you are out having dinner and consumed one drink per hour over a three hour period and ate a full meal, you would pass a breath test. Once you refuse a breath test, generally speaking (subject to an Administrative Hearing at the DMV), your license to drive will be revoked for one year and DMV will impose a $500.00 civil penalty. And get this. The only way you would be eligible to receive a Conditional License during this one year revocation is if you are convicted in criminal court of either a DWI or a DWAI (Driving While Ability Impaired). In other words, if you go to trial in the DWI case in court and are acquitted, you are not eligible to receive a Conditional License during the one year revocation you have received for your refusal of the breath test.
Q. Why should I bother getting a lawyer? I failed the breath test. Doesn’t this mean an automatic conviction?
A. No, it does not. In many, many cases I have been successful in persuading a judge to suppress the breath test results because of errors caused by the police. At trial, the District Attorney must prove that the breath test device was in proper working order and properly calibrated. This is not always the case. The breath test machines are operated by people and people are human and they make mistakes. In addition, a conviction for DWI is a serious matter in addition to stiff penalties, fines, license revocation and a criminal record, a conviction for DWI also means that a second arrest within 10 years will be prosecuted as a felony increasing the likelihood of being incarcerated. The most important decision to be made after an arrest for DWI is selecting the right attorney. You should not select an attorney who dabbles in DWI, but someone who spends most of their time defending DWI cases. You should hire someone who has taken several DWI cases to trial and has won. You should hire someone who can successfully persuade the District Attorney to lessen the charges because your attorney has pointed out defects in their case. You may decide to select someone who judges and lawyers pick to represent them when they are arrested for DWI. That someone would be Frank J. Raso.