Common Misconceptions about a DWI Arrest in New York State

Interviewer: What are the top misconceptions that your clients have about the whole DWI process? Because they’re not attorneys, and you also mentioned they weren’t intending to commit this crime, so it kind of blindsides them. I would imagine that they don’t know a lot about what exactly they should be doing and they do not have much knowledge about what is going to transpire.

Most People Are More Informed of the Consequences of a DWI Conviction Due to the Internet

Michael: Well, most of them are much more knowledgeable than they used to be, probably because of the Internet. There’s a lot of information on the Internet regarding the consequences of a DWI. Information is also contained in many attorneys’ websites. And most of the information by and large is relatively accurate.

What Many People Do Not Realize Is the Importance of Legal Representation

So when clients come in, they are pretty well versed in what they can expect. What they don’t know is whether, if it’s their first offense or a second offense how to achieve the best sentence possible. That is where the expertise of an attorney becomes all important.

What to Avoid Saying during a Police Stop

Interviewer: Are there things that people do that unintentionally hurt their case?

Michael: Well, in hindsight, there are always things you can do better. One of the tips I always tell people for the future is honesty is not always the best policy when you’re stopped if you’ve been drinking, especially if you’ve been drinking a minimal amount. By admitting you had a beer or two, again, it opens the door to treating you as a suspect and conducting whatever tests they desire.
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What Should You Say During a Police Stop?

Interviewer: What you just mentioned brings up a good point. You don’t want to lie to the police and I think it’s actually probably illegal. But what are you supposed to do when you’re asked questions and there’s no good answer? What should you say? What would be your rights?

You Are Not Legally Compelled to Make Incriminating Statements to the Local Police

Michael: It’s not against the law to lie to the police on a local level. It is against the law to lie to the FBI, and there is a federal law against that. But a defendant is presumed innocent, and he’s not expected to make incriminating statements against himself.

So if a police officer asks you if you’ve been drinking and you’ve been drinking, honesty is not the best policy. The police are not your friend and they’re not there to give you a break. There job is to make arrests. By admitting to the consumption of alcohol you are making their job easier.

It Is Always Advisable to Speak with an Attorney before Answering Police Questions

But if you don’t want to say anything, the best thing to say is, I have an attorney, I’ve spoken to an attorney about these types of matters, and it’s just a policy of mine anytime I’m stopped by the police not to make any statements until I speak to my attorney.

It Is Unlikely You Will Be Able to Talk Your Way Out of a DWI Arrest

Interviewer: And it in that line, if you’re stopped and asked to get out of the car, can you talk your way out of a DWI arrest, or is it the more you say, the more likely you’re going to have problems?

Michael: Well, usually cases which do not result in an arrest never get to my office so I do not hear about them. But I did hear about a person who initially talked his way out of a DWI arrest. He was asked to leave his car and find another way home. Instead, after about 30 minutes he circled back to his car and attempted to drive home. Guess What? The police were waiting and arrested him.

It Is Possible to Expect Some Leniency from Your Local Police Officers, Provided You do Comply with Getting Transportation Home

But forgiveness is human nature and sometimes local police who know the local townspeople may give them a break. They’re going to either take them home or escort them home or have them leave their car and make it home.

Police Attitudes Have Changed Very Little over the Years toward DWI Arrests

Interviewer: How have the police changed in how they treat people in the past 20 or 30 years? Has there been any difference that you have observed?

Michael: No. I don’t see that they’ve become necessarily more lenient or strict with people suspected of DWI. Police are police. They’re human beings like everyone else and there are all types. Some are strictly by the book. Others are more compassionate.
Call for a Free, 20-min, Traffic Ticket Strategy Session
(914) 709-7161

Do People Have Common Reactions to a DWI Arrest?

Interviewer: How do most people feel mentally and emotionally once this happens? Do most of them want to just give up and plea out? Do they feel just terrible? What goes on mentally and emotionally with people?

After a DWI Arrest, Most People Freely Acknowledge Their Mistake but Need Legal Counsel to Help Lessen the Penalties

Michael: Well, most people are willing to admit their mistake. Most of them don’t want to contest the matter because of the emotional strain, the fact that they might be without a license during the pendency of the matter, the expense involved of litigating, and the probability of a harsher sentence if they lose at trial. So most people are willing to acknowledge their mistake and devote their efforts to obtaining the best sentence possible.

Other Common Misconceptions In DWI Cases

I Refused The Breathalyzer. Does That Mean That There Will Be No Evidence Against Me?

Not necessarily true. The act of refusing itself can be considered evidence of guilt against you. In addition, any admissions you make regarding the consumption of alcohol, or any physical signs of intoxication or impairment observed by the police officer can also be considered evidence against you.

I Think I Performed Rather Well On The Standard Field Sobriety Tests (FST), So Does That Mean It Will Be An Easy Case To Win.

You might think you performed well. But the police officer probably has another opinion. If you performed so well on all the FST tests, you probably would not have been arrested.

What About Refusing The Breath Test And Field Sobriety Tests. Am I Then Home Free?

Not home free but you probably made it more difficult to prove you guilty. As I indicated above, the mere act of refusal is evidence of guilt against you and will still result in your arrest. However, your refusal of all tests makes my job defending you at trial earlier as it is much easier to contest an officer’s subjective observations of intoxication rather than so-called objective tests.

The Police Officer Did Not Read Me My Miranda Rights; The Case Will Be Dismissed, Correct?

People have a common misconception that an arrest is not valid if it did not include Miranda warnings. Remember, this is real life and not TV. The police are only required to advise you of your Miranda rights if they intend to question you about the incident and use any of your responses against you at trial. If they do not intend such questioning, they are not required to read your Miranda rights.

Call for a Free, 20-min, Traffic Ticket Strategy Session
(914) 709-7161

The Officer Was Rude To Me And Got Me To Say And Do Things Because I Was Intimidated, That’s All Caught On Camera, Right?

Unfortunately not. Police in Westchester County as well as most counties north of N.Y.C., are not required to utilize cameras nor are they equipped with cameras to record an arrest.

The Police Officer Was Super Nice And Assured Me Things Would Be Ok And I Do Not Have To Worry, Right:

If he was so nice, why did he arrest you? Once an arrest is made, the case is in the hands of the District Attorney’s office and will be handled in accordance with their policies and guidelines, despite the police officer’s assurances otherwise.

I Am Not An Alcoholic. The Court Should Understand That. Correct?

Whether you have a drinking problem or not, is not relevant to guilt or innocence in your case. It does have an influence on the sentence imposed by the court, should your arrest result in a conviction.

I Literally Had Only Three Drinks And Told The Officer. I Can Even Show The Receipt From The Place I Bought Them At. Shouldn’t That Be Enough?

The receipt may not be enough if there is a possibility that other persons as well as a bartender would have bought you drinks at the particular establishment. In addition, many people can become intoxicated or impaired after three drinks depending upon the size of the drink and alcohol content. So admitting to and proving the consumption three drinks at one location may not be enough. It all depends on the result of the breath test, if you submit to one.

If I Was Convicted Of A DWI In New York, After The Passage Of Time Can I Get My Conviction Expunged?

Unfortunately you cannot. There is no expungement statute in New York. Not only is there no expungement of a DWI case, but statutes providing for the “sealing” of court cases do not even apply.

I Blew Under A .08%, So Why Was I Still Arrested?

Because the New York DWI statute considers someone who blew a .05% to a .07% BAC as being “impaired” by alcohol not intoxicated, which is still a violation of the law and will result in an arrest.

I Was Drinking So I Pulled Over To The Side Of The Road To Wait It Off. The Police Came And Arrested Me Anyway Even Though I Was Not Driving. I Should Have Any Easy Case, Right?

Not necessarily. In order to prove a motorist guilty of DWI, the law does not require that it be proven they were actually driving but that they “operated” the vehicle. Operation is a much broader term and covers many more circumstances. In the case where you are found on the side of the road, it depends upon whether it can be shown circumstantially that you operated your vehicle in an intoxicated condition prior to your pulling over to the side of the road. If there is no other innocent explanation for your presence on the side of the road in an intoxicated condition, other than that you drove to that location, you still can be convicted of a DWI.

Is A DWI Trial An Impossible Battle That I Am Doomed To Lose?

No. The beauty of a trial is that you never know what will happen, and you never know what problems and legal technicalities will be discovered and work to your benefit. The best way to contest a DWI case is to: (1) hire an experienced DWI attorney, (2) be prepared to hire your own experts to contest both the field sobriety tests and breathalyzer tests and (3) gather any and all other evidence available to demonstrate that if you did consume alcohol it was a minimum amount and could not have resulted in your being intoxicated.

Should I Only Go With The Lawyer That Guarantees Me Success?

No lawyer can guarantee success. What a lawyer can guarantee is that he or she will devote their full time and attention to your case and put forth the best effort possible to obtain a satisfactory result. Any lawyer who cites statistics that for example, “that they never lose a case” or “have won 99 out of 100 cases” and therefore can guarantee success, is just “puffing”. Every case is different, every factual situation is different, and every lawyer makes a different impression and has a different approach to your case. You should go with the attorney you feel the most comfortable with and would be proud to have stand up before a judge and jury and argue on your behalf.