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DUI (DWI) Frequently Asked Questions in New York

What evidence can/cannot be admitted in the DUI case in this state?

An initial stop of a motorist is justified, and does not violate the Fourth Amendment, where the stop is based on a traffic infraction that the police officer witnessed. Evidence gathered as a result of a legal vehicle stop, under the proper reasonable cause standard, is admissible evidence in DWI cases. Evidence that will be admissible includes the following: slurred speech, watery, bloodshot eyes, strong odor of an alcohol beverage on the defendant, and visible impairment based upon the appearance of a motorist such as staggering, as well as a totality of the circumstances tend to show that the defendant’s ability to operate a motor vehicle was impaired by the use of alcohol. That is to say, that the stop of a vehicle which occurs in the early morning hour when there is little motor vehicle traffic is a significant factor justifying a stop upon much less comprehensive information than would be adequate were the stop at midday.

In contrast, evidence that stems from an unlawful stop, detention, or warrantless arrest, will be suppressed and stricken from the record in violation of his right to be free from unreasonable searches and seizures as guaranteed by the U.S. Const. Amends. IV, XIV. Stopping an automobile and detaining its occupants constitutes a seizure within the meaning of the U.S. Constitution. Police must have probable cause a traffic infraction has been committed in order to initiate a traffic stop for the alleged traffic infraction. When an officer stops a driver for the alleged violation of a statute, but the record indicates the driver did not violate the statute, the traffic stop is unlawful.

Can a DUI be expunged in New York?

In that State of New York there is no expungement statute. Therefore, the ability to have a DUI taken off of ones records is non-existent.  A conviction of a DUI can only be overturned (vacated) in New York upon a finding of new evidence or an illegal conviction. In the event of either of these, the case will be reheard, plead out of, or dismissed. 

Can I be stopped and arrested for a DWI even if the vehicle was not moving?

You can be stopped and arrested for a DWI in New York when the car is not moving. In order prove a DWI offense, the prosecution must show that the defendant was driving or operating a motor vehicle, on a road or highway, while having a Blood Alcohol Content (BAC) level above the legal limit. Under § 1192 of the statute, it states that “the definition of operation . . . is broader than the ordinary definition of driving. Operation includes the act of using the mechanism of the automobile for the purpose of putting the automobile in motion, even though the vehicle does not move.  Operating of a vehicle can be found if you are observed in a car with your engine running, even if the car is not moving.

Do I have the right to talk to an attorney before I give a sample?

Under New York law, one does have a right to consult an attorney before submitting to a chemical test. However, since a sample must be given within two hours of the arrest, so a driver does not have an absolute right to consult an attorney before one reaches the scene. The attorney does not need to physically at the scene and if the delay may impair the DWI evidence process, an individual will have to choose between taking the test and relinquishing their license.

An office must make a good-faith attempt to reach an individuals attorney and if the office does not make this effort, or does not allow for an individual to consult an attorney beforehand, the evidence can possibly be suppressed at trial. After talking to an attorney, the driver can go against the advice of the attorney and submit to the test.

Do I have to give a blood or urine sample?

If the initial vehicle stop was lawful and conformed to New York law, then there is no difference with regard to the implied consent law if the test is a breath, urine, or blood sample. Meaning, that you are required to submit to a chemical test as a result of your obtaining a license in the state of New York if you are stopped under the suspicion of DUI. However, this does not mean that a chemical test can be forced upon a person. The statute states that warning by a police officer to the driver must include the following:

1. “You are under arrest for driving while intoxicated;”

2. “A refusal to submit to a chemical test, or any portion thereof, will result in the immediate suspension and subsequent revocation of your license or operating privilege whether or not you are convicted of the charge for which you were arrested;”

3. “If you refuse to submit to a chemical test, or any portion thereof, your refusal can be introduced into evidence against you at any trial, proceeding, or hearing resulting from this arrest;”

4. “Will you submit to a chemical test of your breath, blood, urine, or urine for the presence of alcohol?”

In the event that there was a refusal, that refusal can be admitted as evidence during the trial if they were given in “clear and unequivocal language.” An individual can also be compelled to submit to a chemical test by court order. If the police officer or district attorney requests a court order to compel a person to submit to a chemical test 4 elements must be satisfied: (1) reasonable cause to believe that person was the driver of a motor vehicle and during operation, a person other than the driver was killed or seriously injured; (2) that the person violation laws of § 1192, or a breath test revealed alcohol had been in the blood of the driver; (3)that the person was arrested lawfully; and (4) that the person refused to submit to a chemical test or was unable to give consent.

Do I have to submit to a field sobriety test?

Under New York law you are not required to submit to a field sobriety test. You have the right to refuse to submit to any of the field sobriety tests. However, New York’s implied consent law does require that you submit to a chemical test. If you refuse to a submit to a chemical test, the officer will inform you of the penalties that will be levied against you as a result of your refusal.


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