SPOTLIGHT ON DRUNK DRIVING

Should you take the breathalyzer test?

During the holiday-party season, our law firm typically gets calls from firefighters who want to understand their legal rights should they ever get pulled over by a police officer while driving home from a party.  Bruce Kaye, Esq., of our criminal division, answers the most frequently asked questions about alcohol-related offenses, including the most FAQ: “Should I take the breathalyzer test?”   

What are the penalties for driving while intoxicated as compared with diving while impaired?

Driving While INTOXICATED is a Misdemeanor. A conviction will result in a criminal record and exposure to stiffer penalties for subsequent DWI convictions, including elevation to a felony offense.  The penalties include up to one year in jail, a mandatory revocation of driving privileges for 6 months, and mandatory fines ranging from $500 to $1000. A driver with a prior DWI conviction within the past 5 years must receive a jail sentence of 5 days, or a 30-day community service sentence.

Conversely, driving While IMPAIRED is a traffic infraction.  It is not a crime and will not leave the driver with a criminal record.    The penalties include a maximum jail term of 15 days, and a mandatory license revocation period of 90 days.  Mandatory fines range from $300 to $500.

A Blood-Alcohol Concentration (BAC) of .08 % or more, creates a rebuttable presumption that the operator is guilty of Driving While Intoxicated.  A BAC of at least .05% but less than .07% creates a rebuttable presumption that the operator is guilty of the violation of Driving While Impaired.

What is the effect of refusing the breathalyzer test?

If a driver refuses the test, his license will be revoked for six months (second offense - one year).  Evidence of the refusal will be admissible in any trial so long as the person was warned of the consequences of refusing.

While declining the test deprives the prosecution of a test score, and reduces the proof to the officer’s observations of the driver (e.g., the presence of the odor of alcohol, the manner in which the vehicle was operated, bloodshot eyes, attitude, balance, coordination, speech, general appearance, etc.), the penalties for refusal are stiff.  What’s more, most District Attorney’s Offices have a policy of not offering a plea to the lesser offense of Driving While Impaired to drivers who have refused the test.

If you are uncertain whether to take the test, request an opportunity to call your attorney.  Inform the arresting officer that you are not refusing the test, just requesting advice from your attorney. You have the legal right to telephone an attorney before you take the test, as long as it doesn’t interfere with the test being administered within 2 hours of your arrest.

Will there be a Video-tape?

The NYPD routinely video-tapes the chemical-test request.  This taping will take place at a precinct within two hours of the arrest.  Because the tapes are played for the jury, they provide a unique opportunity for the motorist to establish his innocence and/or explain his refusal to take the breath test.

Should I speak to the officer?

You should be cooperative, but there is no penalty for limiting conversation to pedigree information or even remaining mute.  The refusal to engage in conversation is not admissible at trial.

The natural inclination is to explain oneself, but, this can have drastic consequences.  It is not uncommon for a motorist to admit having come from a party or having had one or two drinks.  Admissions of this nature will surely be offered as evidence at trial, and where the motorist elects not to submit to the chemical test, will confirm the presence of alcohol.

Once placed under arrest, a clear and unequivocal request to speak with an attorney will effectively invoke the constitutional right to counsel.  This right cannot be waived unless the attorney is present and will generally render any subsequent statements inadmissible.

Will my car be impounded?

The NYPD is empowered to commence a forfeiture action against the owner of a vehicle that was used during the commission of a crime.  If the driver is also the owner, a forfeiture action is all but guaranteed.  If the vehicle is leased and the lease agreement allows the leasing company to rescind the lease of an impounded vehicle, the NYPD will release the vehicle to the leasing company as the titled owner.

Most forfeiture actions are settled after payment of administrative fees and proof of either satisfactory completion of an alcohol-treatment program, or a competent evaluation that finds an no alcohol treatment is necessary.

CONCLUSION

If you haven’t been drinking, then take the breath test ..., if you were drinking and you think you’ll fail the test, then politely make a request to consult with your attorney.