Glenn W. Magnell

Attorney at Law

Criminal Defense

162 Main Street, Goshen  NY  10924  

Phone: 845-294-0585   Email: gmagnell@stormkinglaw.com

 

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Alcohol and Drug Related  Driving Offenses                                                               DWI Consultation Form

On average, almost 90,000 DWI related arrests are made in New York State every year!  They can happen to almost anyone and can result in serious fines, dramatically increased insurance rates, loss of driving privileges and, sometimes, even jail or prison sentences.  They are offenses that prosecutors and courts take very seriously and anyone charged with a DWI offense needs to be sure that they are represented by an attorney that understands one of the most intricate and complicated areas of criminal defense practice.

Defending people charged with alcohol related offenses is a very specific area of criminal law.  Effective defense of DUI related charges sometimes involves seeking the best possible "plea agreement" with the District Attorney's office.  Other times, it may mean taking the charges to a trial.  Whatever the situation, an attorney that understands both the law and the science of determining whether an individual is intoxicated, how that was determined by the police and whether proper procedures were followed, often determines the outcome of a case.

In New York State there are a variety of possible alcohol related vehicle offenses.  Which offense is charged is determined by the "Blood Alcohol Content" (BAC) of the person arrested and whether or not they have had previous convictions for alcohol related motor vehicle offenses.  In cases where a party, other than the intoxicated driver, is injured or killed very serious criminal charges may be filed, including reckless murder.

DWAI-Driving While Ability Impaired

The lowest level of alcohol related motor vehicle offense is Driving While Ability Impaired (DWAI).  Unlike virtually all other alcohol related vehicle offenses, it is not a criminal offense (misdemeanor or felony).  Instead, it is a "violation" somewhat like a speeding ticket...like a very, very serious speeding ticket.  To convict someone of DWAI the state must prove, beyond a reasonable doubt, that a person operated a motor vehicle while their ability to safely and lawfully operate that vehicle was impaired by having consumed alcohol.  A first time conviction can result in a fine of up to $500, a jail sentence of up to 15 days and will result in a 90 day suspension of your driver's license.  A second conviction for DWAI within 5 years of another alcohol related vehicle offense dramatically increases all of those penalties.  In addition, a conviction for DWAI will almost certainly lead to a substantial increase in your auto insurance rates.

DWAI is often a charge that a person arrested for DWI will end up pleading guilty to as a result of a "plea bargain".  Since it is not classified as a "crime" and has relatively small penalties, attorneys will often seek to convince district attorneys to agree to drop a DWI charge in return for a plea of guilty to DWAI.  The likelihood that an attorney can, eventually, obtain such an agreement is often based on what kind of alcohol related driving record a defendant has.  Also, in many counties the District Attorney's office will have a "policy" of not plea bargaining a DWI charge down to a DWAI charge if the blood alcohol level was above a set percentage (ex. no plea down to DWAI if B.A.C. was above .14%).  However, there is no consistency from one county to another at to what percentage B.A.C. is "too high" to negotiate a deal down to DWAI.

DWI-Driving While Intoxicated (Misdemeanor)

In New York State there are two different drinking and driving offenses that are misdemeanors (a lesser "crime").  They are known as "per se" Driving While Intoxicated (DWI) and "common law"  DWI.  Both offenses are spelled out in Vehicle and Traffic Law Sec. 1192.2 and 1192.3.  Per se DWI is charged when a motor vehicle is operated by a person whom a chemical test of breath, blood or urine shows the driver had a blood alcohol content (BAC) equal to or higher than .08%.  The important aspect to understand about a "per se" DWI charge is that to convict a person a prosecutor doesn't have to show that the person acted intoxicated or showed signs that his/her ability to drive was impaired.  All that has to be proved is that the blood alcohol level was at .08% or more and that person was operating a motor vehicle.  However, that doesn't mean that the conduct of the driver is irrelevant.  In order to arrest someone and obtain a BAC sample of breath, urine or blood the police officer must have "probable cause" to believe that person is intoxicated.  That "probable cause" is typically developed by observing the driver on the road and after stopping the driver, as well as, on the basis of what are known as "Field Sobriety Tests".  In contrast, "common law" DWI is all about the conduct of the person charged with the offense.  It is based upon observations of a police officer and/or other witnesses who claim that the behavior and demeanor of the driver, along with the "Field Sobriety Tests" prove the driver was intoxicated.

A conviction on either a "per se" or "common law"  DWI can result in a punishment of up to 12 months in jail, a fine of up to $1000 and the suspension of your drivers license for 6 months.  A second DWI conviction within 10 years can dramatically increase the penalties.  In some cases subsequent convictions can elevate the offense to a felony charge (the most serious type of crime) and involve very substantial prison time and fines.

Aggravated Driving While Intoxicated (ADWI)

A new misdemeanor intoxication offense in New York was added in the summer of 2006.  It is called Aggravated Driving While Intoxicated (ADWI).  This offense is charged when a blood alcohol reading of .18% or greater is determined by a chemical test.  If convicted of ADWI the possible penalties are much greater than a conviction for either "per se" or "common law" DWI (this includes fines, possible jail time and length of driving license suspensions/revocations).  Due to a flaw in the language of the statute when it was passed, ADWI has not been prosecuted in 2006 (it is common for the police to charge ADWI, but the charges are usually reduced or dropped to standard DWI).  However, the NYS legislature has passed a revised version of this statute and it became law in late December 2006.  The revised statute is now being prosecuted throughout New York.

Misdemeanor DWI is the most common form of intoxication offense charged in New York State.

Driving While Ability Impaired-Drugs (DWAI-D)

Operating a motor vehicle while the ability to operate it safely has been "impaired by drugs" is an equivalent offense to DWI.  It can be charged as either a misdemeanor or a felony and subjects the person charged with similar criminal penalties and NYS DMV license suspensions/revocations.  A previous conviction (within past 10 years) for either DWI or DWAI-Drugs is the predicate for charging DWAI-Drugs as a felony.  A person can be charged with DWAI-Drugs from the use of either a "controlled substance (i.e. illegal drug) or even a lawfully prescribed prescription drug.  Probable cause for arrest is usually based upon the same Standardized Field Sobriety Tests used in DWI arrests.  However, unlike DWI a "breath test" is not used to determine the level of intoxication.  Rather, blood or urine tests are used to detect the presence of drugs.  These tests can determine if drugs have been consumed in the recent past.  However, they often cannot be used to determine whether someone was or was not intoxicated by drugs at the time they were driving (or arrested).  Very often DWAI-Drugs is charged in conjunction with other criminal charges such as "Criminal Possession of a Controlled Substance" if the police also found drugs on the person or in the car of the individual arrested.

Chemical Tests and Test Refusals

Almost all DWI arrests involve the police requesting that the suspected intoxicated driver agree to provide a sample of their breath, blood or urine for chemical testing.  Under NYS Vehicle and Traffic Law a refusal by a driver to provide such a sample will result in a revocation of their driver's license or driving privilege in NYS for one year.  A second refusal within 10 years of a previous refusal dramatically increases the revocation period.  The chemical tests that invoke these harsh sanctions must be given by an officer who has been trained to give them (in the case of breath tests) and has been certified by the NYS Department of Health to give such tests.  If a blood test is requested the blood must be drawn by a nurse, physician or other person trained and certified to draw blood.  The actual testing of the blood or urine must be done in a certified laboratory (usually operated by a law enforcement agency).  Chemical breath tests are admissible in court if the operator is properly trained and certified, if the follow a very precise procedure and the test equipment has been properly maintained and calibrated.  The chemical breath test is almost always given at a police station.  Sometimes police officers will use a hand held breathalyzer at the scene of an arrest.  These machines are not considered accurate enough to provide reliable evidence of the degree of intoxication for use in court.  However, they can be used to as "probable cause" to arrest someone.  A refusal to take a field breath test does not invoke the revocation a driver's license that a refusal to take a chemical breath test at a police station does.  Refusal to take a field breath test is simply a minor traffic violation.

Other DWI Related Crimes

DWI-Driving While Intoxicated (Felony)

A person convicted of DWI is subject to being charged with DWI as a Felony if their second DWI arrest occurs within 10 years of the date of their first offense.  Under NYS penal law there are two types of criminal offenses: misdemeanors and felonies.  Misdemeanors are a less serious category of criminal offense which can be punished by up to one year in jail (county or city jail).  Felonies are more serious offenses that are punishable by one year or more in state prison.  Felony DWI is an "E-Felony."  This is the lowest category of offenses that are considered felonies.  In order for a felony to be prosecuted an indictment must be issued by a Grand Jury which has heard the evidence and has, by majority vote, determined that a felonious offense probably was committed by the person indicted.  A misdemeanor can be prosecuted simply on the basis of a document (called an "information") filed by the District Attorney's office.

Frequently asked questions (click Here)

Other DWI Related Crimes

    Vehicular Assault (1st and 2nd degree)

    Vehicular Manslaughter (1st and 2nd degree)


Hudson Valley- Counties Served                    HV Ticket Hotspots

         Orange County, Putnam County, Dutchess County, Ulster County, Rockland County

 

Hudson Valley Communities Served

Orange County

Arden, Balmville, Bellvale, Town of Blooming Grove, Bullville, Campbell Hall, Central Valley, Town of Chester, Village of Chester, Circleville, Town of Cornwall, Cornwall on Hudson, Town of Crawford, Cuddebackville, Florida, Fort Montgomery, Godeffroy, Town of Goshen, Village of Goshen, Town of Greenville, Greenwood Lake, Town of Hamptonburgh, Harriman, Town of Highlands, Highland Falls, Highland Mills, Howells, Huguenot, Johnson, Maybrook, Mid Hudson, Middle Hope, City of Middletown, Town of Minisink, Town of Monroe, Village of Monroe, Town of Montgomery, Village of Montgomery,  Mountainville, New Hampton, New Milford, Town of New Windsor, City of Newburgh, Town of Newburgh, Otisville, Pine Bush, Pine Island, Port Jervis, Rock Tavern, Salisbury Mills, Silver Lake, Slate Hill, Southfields, Sparrow Bush, Sparrowbush, Sterling Forest, Sugar Loaf, Thompson Ridge, Town of Tuxedo, Village of Tuxedo, Tuxedo Park, U S C C, Unionville, United States Military Academy, Vails Gate, Walden, Town of Wallkill, Warwick, Washingtonville, Town of Wawayanda, West Point, Westtown, Town of Woodbury.
 

Ulster County

Accord, Bearsville, Big Indian, Bloomington, Boiceville, Cherrytown, Chichester, Clintondale, Connelly, Cottekill, Cragsmoor, Eddyville, Ellenville, Esopus, Gardiner, Glasco, Glenford, Grahamsville, Greenfield Park, High Falls, Highland, Highmount, Hurley, Kerhonkson, Kingston, Krumville, Lake Hill, Lake Katrine, Leibhardt, Lyonsville, Malden, Malden Hudson, Malden on Hudson, Marlboro, Marlborough, Mettacahonts, Milton, Mldn on Hdsn, Modena, Mount Marion, Mount Merion Park, Mount Tremper, Napanoch, New Paltz, Olive, Olivebridge, Oliverea, Phoenicia, Pine Hill, Plattekill, Port Ewen, Rifton, Rosendale, Ruby, Saint Remy, Samsonville, Saugerties, Shady, Shandaken, Shokan, Spring Glen, Stone Ridge, Sundown, The Vly, Tillson, Ulster Park, Walker Valley, Wallkill, Wawarsing, West Camp, West Hurley, West Park, West Saugerties, West Shokan, Whitfield, Willow, Woodstock, Town of Denning, Village of Ellenville, Town of Esopus, Town of Gardiner, Town of Hardenburgh, Town of Hurley, Town of Kingston, Town of Lloyd, Town of Marbletown, Town of Marlborough, Town of New Paltz, Town of Olive, Town of Plattekill, Town of Rochester, Town of Rosendale, Town of Saugerties, Town of Shandaken, Town of Shawangunk, Town of Ulster, Town of Warwarsing, Town of Woodstock
 

Sullivan County

Barryville, Bethel, Bloomingburg, Burlingham, Callicoon, Callicoon Center, Claryville, Cochecton, Cochecton Center, Eldred, Fallsburg, Ferndale, Forestburg, Forestburgh, Fremont, Fremont Center, Glen Spey, Glen Wild, Grahamsville, Hankins, Harris, Highland Lake, Hortonville, Hurleyville, Jeffersonville, Kauneonga Lake, Kenoza Lake, Kiamesha Lake, Lake Huntington, Lew Beach, Liberty, Livingston Manor, Loch Sheldrake, Long Eddy, Mongaup Valley, Monticello, Mountain Dale, Mountaindale, Narrowsburg, Neversink, North Branch, Obernburg, Parksville, Phillipsport, Pond Eddy, Port Jervis, Rock Hill, Roscoe, Smallwood, South Fallsburg, Summitville, Swan Lake, Thompsonville, Westbrookville, White Lake, White Sulphur Springs, Woodbourne, Woodridge, Wurtsboro, Youngsville, Yulan, Town of Bethel, Town of Callicoon, Town of Cochecton, Town of Delaware, Town of Fallsburgh, Town of Freemont, Town of Highland, Town of Liberty, Town of Lumberland, Town of Mamakating, Town of Rockland, Town of Neversink, Town of Thompson, Town of Tusten.

Putnam County

Adams Corners, Brewster, Carmel, Cold Spring, Crofts Corners, Garrison, Kent Cliffs, Lake Carmel, Lake Lincolndale, Lake Mahopac, Lake Peekskill, Lake Secor, Mahopac, Mahopac Falls, Manitou, Nelsonville, North Highland, Oscawana Lake, Patterson, Philipstown, Putnam Valley, Sears Corners, Southeast, Tompkins Corners

Dutchess County

Amenia, Arlington, Beacon, City of Beacon, Beekman, Brinckerhoff, Clinton, Crown Heights, Dover Plains, Dover, East Fishkill, Fairview, Fishkill, Fishkill, Haviland, Hillside Lake, Hopewell Junction, Hyde Park, La Grange, Milan, Millbrook, Millerton, Myers Corner, North East, Pawling, Pawling, Pine Plains, Pleasant Valley, Poughkeepsie, Red Hook, Red Hook, Red Oaks Mill, Rhinebeck, Rhinebeck, Spackenkill, Staatsburg, Stanford, Tivoli, Union Vale, Wappinger, Wappingers Falls, Washington, Town of Amenia, Town of Beekman, Town of Clinton, Town of Dover, Town of East Fishkill, Town of Fishkill, Village of Fishkill, Town of Hyde Park, Town of LaGrange, Town of Milan, Town of Millbrook,  Town of North East, Town of Pawling, Village of Pawling, Town of Pine PLains, Town of Pleasant Valley, Town of Poughkeepsie, City of Poughkeepsie, Town of Red Hook, Village Red Hook, Town of RhineBeck, Village of Rhinebeck, Town of Stanford, Village of Tivoli, Village of Union Vale, Town of Wappinger, Willage of Wappingers Falls, Town of Washington.

Rockland County

Town of Clarkstown, Town of Haverstraw, Town of Orangetown, Town of Ramapo, Town of Stony Point, Upper Nyack, Nyack, Pomona, Haverstraw, West Haverstraw, Grand View, Piermont, South Nyack, Airmont, Chestnut Ridge, Hillburn, Kaser, New Hempstead, New Square, Montibello, Sloatsburg, Spring Valley, Suffern, Wesley Hills.

Highways With High Intensity State Police Activity

               NYS Thruway, I-87, I-84, Route 17, Taconic Parkway, Palisades Parkway, Route 209, Route 28, Route 6.

 

Contact Information (printer-friendly contact info)

If you would like a consultation or wish to arrange for representation on any Social Security matter, criminal matter, drawing up a living will, testamentary will, trust and estate planning or health care proxy, you can contact Glenn W. Magnell at either his Goshen or Cornwall offices. 

Goshen Office: 162 Main Street, Goshen, N.Y. 10924  Phone: 845-294-0585  Fax: 888-724-5470 (toll free)

Cornwall Office: 151 Continental Road, Cornwall, N.Y. 12518 Phone: 845-725-7935 Fax: 888-724-5470 (toll free)

Email: gmagnell@midvalleylaw.com

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Click here for Goshen                         Click here for Cornwall    

 

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