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New York Driving While Intoxicated (DWI)

Section 1192 of the New York Vehicle and Traffic Law, subsection 3, prohibits the operation of a motor vehicle while a person is in an intoxicated condition. To be convicted under this statute, the prosecution must prove beyond a reasonable doubt that the defendant was operating a motor vehicle while in an intoxicated condition. While subsection of 1 of section 1192 applies to being impaired by alcohol, subsection 3 applies to intoxication by alcohol or drugs. When it comes to alcohol, in New York, a person is considered to be intoxicated if their blood alcohol concentration (BAC) is 0.08% or higher. However, even if a defendant's BAC is below this threshold, they can still be convicted of driving while intoxicated under Section 1192 of the New York Vehicle and Traffic Law, subsection 3 if they are found to be impaired by alcohol or drugs to the extent that they cannot operate a motor vehicle safely. If you are facing a DWI charge, it’s critical that you contact a skilled New York DWI lawyer. At Stephen Bilkis & Associates we have over 20 years of experience representing clients facing serious charges such as driving while intoxicated. We have the knowledge and experience to help ensure your legal rights are protected.

Evidence of Intoxication

If a police officer suspects that a driver is intoxicated, they often administer a field sobriety test. A field sobriety test is a series of tests that police officers use to assess a driver's level of impairment when they suspect that the driver was driving while intoxicated. In New York State, police officers typically use the Standardized Field Sobriety Test (SFST) to determine if a driver is impaired. The SFST consists of three tests that are designed to measure a driver's physical coordination, balance, and mental clarity. The tests include:

  • Horizontal Gaze Nystagmus (HGN) Test: This test involves the officer holding a pen or other object and asking the driver to follow the object with their eyes. The officer will look for signs of nystagmus, or involuntary jerking of the eyes, which can be an indication of alcohol impairment.
  • Walk-and-Turn Test: In this test, the officer will ask the driver to take nine heel-to-toe steps along a straight line, turn on one foot, and then take nine more heel-to-toe steps back along the line. The officer will look for signs of impairment such as loss of balance, inability to walk in a straight line, and failure to follow instructions.
  • One-Leg Stand Test: In this test, the officer will ask the driver to stand on one leg with the other foot raised six inches off the ground and count aloud until told to stop. The officer will look for signs of impairment such as swaying, hopping, or putting the raised foot down.

The results of these tests can be used as evidence of impairment in a DWI case. However, it is important to note that the results of field sobriety tests are subjective and can be influenced by a number of factors such as the driver's physical condition, fatigue, nervousness, or environmental conditions such as uneven pavement. A skilled New York DWI lawyer will challenge a field sobriety test as part of their defense strategy.

If a driver fails a field sobriety test or shows signs of impairment, the officer may then ask them to take a chemical test, such as a breathalyzer, to determine their blood alcohol concentration (BAC) level. In New York State, drivers are considered to have given their implied consent to a chemical test if they are suspected of DWI. Refusing to take a chemical test can result in penalties such as fines and license suspension.

Penalties for DWI in New York

The penalty for violating § 1192(3) of the New York State Vehicle and Traffic Law, which prohibits driving while intoxicated, depends on the number of previous convictions and the level of impairment at the time of the offense.

For a first offense, the penalties include:

  • A fine of $500 to $1,000
  • A possible jail term of up to one year
  • A license revocation for at least six months
  • The requirement to install an ignition interlock device (IID) in any vehicle owned or operated by the defendant for a period of at least six months

For a second offense within 10 years, the penalties include:

  • A fine of $1,000 to $5,000
  • A possible jail term of up to four years
  • A license revocation for at least one year
  • The requirement to install an IID in any vehicle owned or operated by the defendant for a period of at least one year

For a third offense within 10 years, the penalties include:

  • A fine of $2,000 to $10,000
  • A possible jail term of up to seven years
  • A license revocation for at least one year
  • The requirement to install an IID in any vehicle owned or operated by the defendant for a period of at least one year

Note that the ignition lock is a requirement of Leandra’s Law. To learn more about the ignition lock requirement, contact an experienced DWI attorney in New York.

Notable New York Case About DWI

People v. O'Connor, 26 A.D.3d 676 (3d Dept. 2006). In this case, the defendant was charged with DWI under § 1192(3) after being involved in a single-car accident. When the police arrived on the scene, they found the defendant sitting in the driver's seat with the engine running and the car in a ditch. The defendant admitted to consuming alcohol prior to driving, and his breathalyzer test revealed a BAC of 0.18%. The defendant argued that he could not be convicted of DWI because he was not actually "operating" the vehicle at the time he drove into the ditch.

However, the court rejected this argument, finding that the defendant had been in actual physical control of the vehicle, and that he had been operating the vehicle while he was on the road. The court stated that the fact that the defendant's vehicle had come to rest in a ditch did not change the fact that he had been operating the vehicle at the time of the accident.

The court also noted that the defendant's high BAC level indicated that he was clearly intoxicated at the time he was driving. As a result, the court upheld the DWI conviction under § 1192(3). This case is significant because it establishes that even if a driver's vehicle is not moving, the driver may still be considered to be "operating" the vehicle under the statute if they have physical control over it, such as when the vehicle is in a ditch.

Contact Stephen Bilkis & Associates

If you are charged with DWI in New York, the first thing you should do is contact an experienced DWI attorney serving New York who can help you understand the charges against you, your legal rights, and potential consequences. Contact Stephen Bilkis & Associates at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We represent clients in Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.


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