DELMAR — After working in United State District Court for the Northern District of New York, I joined a very well regarded law firm in Albany in 1991. My areas of practice focused on plaintiff’s personal injury and criminal defense. I became a partner in 1996 and practiced law there for 17 years.
In 2014, I, along with Lee Greenstein, Esq., purchased the building previously occupied by Spotlight News on Adams Street in Delmar. There are now six independent attorneys occupying the building and handling various areas of practice. Please call and stop in for a consultation.
Assume that an adult driver over the age of 21 is pulled over by the police; there are specific statutory provisions in the Vehicle and Traffic Law regarding drivers under the age of 21, which will not be addressed herein. The driver is charged with DWI.
Initially, absent an accident, there needs to be some basis for the officer to stop the vehicle, unless there is a road block orchestrated by law enforcement for the purpose of checking drivers for the influence of alcohol. Generally, the basis for the stop arises from the officer witnessing the driver committing a moving violation of the Vehicle and Traffic Law. A defendant’s arguments against the basis for the stop are always preserved, and can sometimes be successful. Without witnesses or passengers, this generally boils down to the officer’s word against that of the driver’s.
The officer approaches the car, asks for license and registration, and recites the reasons for the stop. The officer claims to smell alcohol and asks if the driver has been drinking. Surprisingly, many people answer affirmatively. All statements by the driver are reduced to writing in an Oral Statement Report, and can constitute statements used against the driver if the case proceeds to trail.
The officer will ask the driver to breathe into what is generally referred to as an Alco Sensor. This is not a scientifically reliable device, but it is used to determine the presence of alcohol in the driver’s system. The preliminary breath test results are recorded by the officer. If alcohol is detected, the officer will ask the driver to undergo a series of field sobriety tests. The officer will also note on a form such physical characteristics as bloodshot or watery eyes, or droopy eyelids.
If an officer determines the driver is under the influence, the driver will be arrested and transported to the police station. Once there, the driver will be asked to breathe into a breathalyzer which, if calibrated properly, is a scientifically reliable test, the results of which can be used against the driver at trial.
If a driver refuses to breath into the breathalyzer, the officer reads standardized refusal warnings to the driver. It is only a violation of law, not a crime, for the driver to refuse to breathe into the breathalyzer.
From the attorney perspective, client intake involves, in part, the following dialogue: what were the breathalyzer results; was there an accident; does driver have any criminal history and, particularly, any alcohol-related driving convictions; what happened during the 12 hours or so before being pulled over; are there witnesses; what was the reason for the stop? Attorney’s fees for DWI charges vary greatly amongst practitioners. As a refusal triggers a separate DMV process, attorney’s fees are higher when the DWI charge includes a refusal charge.
After intake, the attorney should then refer client to a psychotherapist, psychologist or certified alcohol treatment specialist for an evaluation. The evaluation is designed to determine whether the client needs inpatient or outpatient treatment above and beyond the treatment that the driver will be required to complete upon conviction, namely, the New York State Drinker Driving Program and the Victim Impact Panel.
The evaluation is a prerequisite to plea bargaining in Albany County and can be useful in other jurisdictions as well, particularly if the incident is an isolated event and out of character for defendant
If arrested, a prompt attorney consultation is critical. Please see my ad below and call me, or stop by the building.
— Brian Devane