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Traffic Defense Articles

Trend Toward Increased Numbers of DWI Cases

Despite the immense pressures that are being exerted in this area—i.e., peer pressures, societal pressures, Mothers Against Drunk Driving (MADD) advertising campaigns—there does not appear to be a slowdown in the number of DWI cases. I am one of two judges in the third busiest justice court in our county, and we have found that since 2012 there have been on average at least five brand new DWI cases on every single court date. I arraign at least twenty new DWI cases a month, as does my fellow judge, year round—again, despite all of the information that is available about the...

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Unlawfully

“Unlawfully” means in violation of article thirty-three of the public health law known as the "New York State Controlled Substances Act." NY Penal Law §220.00(1).

Controlled substance

“Controlled substance” means any substance listed in schedule I, II, III, IV or V of section thirty-three hundred six of the public health law

Increased DWI Chemical Test Refusals and Implied Consent in New York

More New York Drivers are Refusing the DWI Chemical Test   Yet another interesting trend that I have observed developing, which I view as being very dangerous, is the fact that an increasing number of people stopped for DWI are refusing to take the chemical breath test at the police station. Indeed, in the last month I have had four or five clients who did not consent to the test, and all of them are regretting their decision. There used to be reasons why an attorney might say to a client, “It would behoove you to not take the breath test”—i.e., if the client was...

Increasing BAC and the New York Aggravated DWI Statute

Increasing BAC Levels A trend evident to both judges and lawyers is a shift toward much higher blood alcohol content (BAC) levels in DWI cases. During my initial training on prosecuting alcohol related offense at the New York State Police Academy, we were told that a BAC of over 2.0 was considered rare, and that if the BAC was 3.0 or higher the subject would likely be unconscious or close to it. However, over the last five years I have observed that the BAC levels in DWI cases are climbing ever higher. Indeed, there was a time when two or more years would pass before I would see a DWI...

Juries in DWI Cases are Tougher on Defendants

Over the course of the past two decades I have observed a major shift in how juries view drivers who are charged with alcohol-related offenses. From the late 1980s through the early 2000s, the prevailing view of a DWI jury—whether it was a misdemeanor or a felony DWI jury—seemed to be, “There but for the grace of God go I.” Indeed, as I often explain to clients, a DWI is the one serious offense that impacts people from all walks of life. My DWI clients have included lawyers, judges, police officers, architects, engineers, and doctors. However, over the last eight...

Driving While Intoxicated (DWI)

New York Vehicle and Traffic Law §1192 defines the the offense of DWI in two different sections: 2. Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of VTL § 1194. Subsection (2) allows the police and prosecution to charge a DWI based on a chemical test.  All drivers in New York have given implied consent to the police to submit...

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Aggravated DWI

New York Vehicle and Traffic Law § 1192 defines the the offense of Aggravated DWI as: (a) Per se. No person shall operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva made pursuant to the provisions of section eleven hundred ninety-four of this article. (b) With a child. No person shall operate a motor vehicle in violation of subdivision two, three, four or four-a of this section while a child who is fifteen years of age or less is a passenger in...

Ignition interlock device

Any blood alcohol concentration equivalence measuring device which connects to a motor vehicle ignition system and prevents a motor vehicle from being started without first determining through a deep lung breath sample that the operator's equivalent breath alcohol level does not exceed the calibrated setting on the device as required by  VTL section eleven hundred ninety-eight. Ignition Interlock Devices prevent a car from starting without the driver first blowing into the device.  Convictions for misdemeanor and felony DWI require drivers to install an interlock device. The...

Driving While Ability Impaired (DWAI)

New York Vehicle and Traffic Law §1192 defines the the offense of DWAI: 1. Driving while ability impaired. No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol.

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