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How to Get a DWI Dismissed in New York

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Last updated 
July 5, 2021
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In the year 2018 alone, 25,094 DWI arrests were made in the State of New York. Of those arrested, all that were charged likely had the same question on their minds: How can I get these charges dismissed?

It’s only natural to think this way when one considers the steep penalties one faces if convicted. Although having DWI charges dismissed altogether is what everyone would want, this is difficult to accomplish. After all, why would the State go to the trouble of charging someone with a crime unless it was confident it could provide the necessary proof in court? 

Most often, those charged with a DWI must expand their definition of “winning” to include anything that minimizes the fallout. Achieving dismissal of one’s DWI charges is certainly an uphill battle, but it is not entirely out of the question. With the backing of a skilled, aggressive DWI defense attorney, and the circumstances of your case permitting, it is possible to have your DWI charges dismissed. In this article, we will use real-life cases to explore the sorts of arguments that most commonly lead to this most favorable outcome.

Overview of Arguments

There are three main buckets of arguments most commonly used to have DWI charges dismissed:

  1. There is not enough lawful evidence to proceed with the charges in the first place.
  2. The evidence is insufficient to convict the driver.
  3. The State made a procedural mistake.

The first two categories reflect two separate bars the State must reach to ultimately convict someone it charges with a DWI offense. The first bar comes before the trial begins. At this stage, the court asks whether the State has enough lawful evidence to convict the accused person to begin with. Having enough lawful evidence doesn’t mean the accused person is guilty, nor that he/she will be convicted. It just means that the State has enough good evidence to make a case for each element of the offense that is charged. If the court finds the State does not have enough lawful evidence at this stage, the charges can be dismissed. 

The second bar arises once the trial has begun. At this point, the court asks whether the State’s evidence is convincing enough to prove “beyond a reasonable doubt” that the accused person is guilty of the charged offense. If the State does not convince the court at this stage, the charges can be dismissed.

The final category is yet another valid reason for the court to dismiss criminal charges. That is, if the State makes a significant procedural error, the court may dismiss the charges altogether. This policy reflects the high premium the modern American legal system places on protecting people accused of crimes by ensuring a fair process.

Therefore, to have DWI charges dismissed, attorneys will most often rely on arguments falling within at least one of these three categories to convince the court that the case should not proceed to trial to begin with, that the State has not proved their client’s guilt beyond a reasonable doubt, or the process is simply too unfair to justify continuing with the charges. Next, we’ll explore some of the key arguments in each category.

Insufficient Lawful Evidence to Bring Charges

When the State brings DWI charges, it must have enough lawful evidence before trial to prove each element of the charged offense. The basic idea is that to justify taking the case to trial, the court wants to know that the State could secure a guilty verdict if the State presented all their evidence and the defense presented nothing. This is a minimal prerequisite to make sure the trial is not a waste of time.

If the State does not have enough evidence to fulfill this requirement, the court may dismiss the charges altogether. A viable strategy for having one’s charges dismissed, then, is to argue that the State does not have enough lawful evidence to support bringing the charges to begin with. Many arguments can be used to this effect. Consider the following examples. 

1. The initial traffic stop was unlawful.

A vast majority of DWI arrests begin with a traffic stop. Police officers do not have unlimited authority to pull drivers over. The law sets specific limits on when a traffic stop is lawful. In a 2017 report on defending in DWI cases, the New York State Bar Association concluded from an examination of multiple court decisions that there are four general circumstances under which a police officer can lawfully pull a vehicle over:

  1. Having probable cause to believe a driver has committed a traffic infraction
  2. Observing an equipment violation
  3. Having reasonable suspicion that a crime has been committed, is being committed, or is about to be committed
  4. Properly administering a valid DWI checkpoint

These limits are intended to balance police authority with people’s rights under the Fourth Amendment to the U.S. Constitution, which protects against unreasonable searches and seizures. Proving an initial traffic stop in a DWI case was unlawful is an incredibly powerful tool. This is because when a court finds an initial traffic stop unlawful, it is usually forced to invalidate any evidence gathered as a result of that traffic stop. Without any viable evidence, the State could not satisfy the court’s hypothetical of being able to secure a guilty verdict if the defense presented nothing at trial. The natural result is to dismiss the charges altogether.

Case Law Example: People v. Bigger

When Mr. Bigger noticed a sobriety checkpoint ahead of him as he headed northbound on Bay Road in Monroe County, he pulled into a driveway, turned his car around, and proceeded in the opposite direction. Sergeant Hall, noticing Bigger’s maneuver, interpreted it as him avoiding the sobriety checkpoint. On this basis alone, he pulled Bigger over. During the traffic stop, Bigger proved to be driving while intoxicated and was arrested.

At a pre-trial hearing, Bigger’s attorney argued the charges should be dismissed because Sergeant Hall’s reason for pulling Bigger over, that he appeared to avoid the sobriety checkpoint, was an impermissible basis for a lawful stop. In other words, Bigger’s attorney argued Sergeant Hall did not have a lawful reason to pull Bigger over. The court agreed and dismissed the charges. 

It noted that in order for a traffic stop to be lawful, an officer must have a reasonable suspicion that the driver is breaking the law. The court went on to explain that most previous cases with similar facts have concluded that a police officer is not permitted to pull someone over solely because the person appears to avoid a sobriety checkpoint. Since this was Sergeant Hall’s precise reason for pulling Bigger over, the traffic stop was unlawful to begin with and any evidence coming from the stop was made invalid. Without any valid evidence, the State could not secure a guilty verdict, so the charges were dismissed.

Case Law Example: People v. Proper

While responding to a call about a domestic dispute, Webster Police Officer States received an update from dispatch informing him that they had received an anonymous tip that an intoxicated woman had left the scene of that same family dispute in a grey Buick. As Officer States approached the area where the dispute was said to be taking place, he encountered a grey Buick matching the description provided by dispatch. He pulled the vehicle over and found Ms. Proper, whose intoxication was evident given her slurred speech, strong odor of alcohol, and self-admission that she had drunk six to ten Vodka mixed drinks before taking the wheel. Proper was arrested and charged with a DWI. 

Despite the strong evidence against her, Proper’s charges were dismissed because the court viewed the initial traffic stop as unlawful. After examining an array of past cases concerning this complicated legal question of when a police officer has reasonable suspicion to pull a vehicle over based on an anonymous tip, the court concluded that this traffic stop was unlawful. The main problem was that the anonymous tip was not reliable enough to justify allowing the officer to pull Proper over based only on the anonymous tip. 

The court pointed to the timing of the call from the anonymous tipster, which was around the time of the domestic dispute. This timing suggested the anonymous person was probably the other family member involved in the domestic dispute. This family member had a motive to embarrass Proper by reporting her, making the accuracy of the tip questionable. Also, the anonymous tip was not specific enough. It did not indicate how the caller knew Proper was intoxicated. Finally, there was nothing that the officer observed to confirm the anonymous tip, such as Proper’s vehicle swerving to indicate possible drunk driving. 

The court affirmed that the police do not have reasonable suspicion to stop someone when all they have is a vague, unreliable anonymous tip to go off of. Since, Officer States lacked reasonable suspicion or probable cause to stop Proper, the traffic stop was unlawful, and all the evidence obtained at the stop was thrown out. Without evidence, the charges had to be dismissed.

2. The officer lacked probable cause for arrest.

Once a police officer clears the first hurdle of having a valid basis for making the initial traffic stop, they encounter a second hurdle: having a valid reason for arresting the driver. The law holds that a police officer is permitted to arrest someone on suspicion of a DWI if they have “probable cause.”

In People v. Vandover, the Court of Appeals of New York explained the standard for probable cause in DWI cases to be “that it is more probable than not that [the] defendant is actually impaired.” The officer lacking probable cause to arrest a driver can lead to the court dismissing the charges altogether or, at the very least, throwing out any evidence gathered after the unlawful arrest. This is significant because the breathalyzer test is most often administered at the police station after the driver has been placed under arrest. So, another viable argument that can lead to one’s charges being dismissed is that the officer lacked probable cause for arrest. Consider the following real-life examples of this argument in action.

Case Law Example: People v. Wallace

When Wallace’s vehicle collided with a bicyclist, a nearby police officer who witnessed the collision responded immediately. As Wallace emerged from his vehicle, the police officer approached to question him concerning the accident. The officer later claimed to have noted Wallace’s bloodshot eyes and the odor of alcohol coming from Wallace’s breath, though the police officer also conceded Wallace was otherwise coherent. Based on these observations, the officer asked Wallace to participate in a number of field sobriety tests. He perceived Wallace as having failed these tests and proceeded to arrest and charge him with a DWI.

Before trial, Wallace’s attorney asked the court to throw out much of the State’s evidence on the basis that the police officer lacked probable cause to arrest Wallace. The court began by examining the probable cause standard in DWI cases.  It noted that “probable cause for the arrest exists if the arresting officer can demonstrate reasonable grounds to believe that the defendant had been driving in violation of Vehicle and Traffic Law § 1192.” The court went on to identify the many issues with the officer’s interpretations of the field sobriety tests. For example, the officer identified Wallace as having failed a test that is really only failed by those with an incredibly high blood alcohol content (BAC); this finding was clearly inconsistent with Wallace’s BAC, which was a mere .05%. 

The court concluded that the officer was incorrect in his judgment. There were no reasonable grounds for believing Wallace was driving while intoxicated. The court even went so far as to say there was no probable cause for administering the field sobriety tests to begin with. On these bases, the court threw out any evidence gathered following Wallace’s arrest.

Though Wallace’s charges weren’t technically dismissed outright before trial, they may as well have been. Without the evidence gathered after his arrest, all the State could present to the court at trial was that the officer smelled alcohol on Wallace’s breath and Wallace’s eyes appeared to be bloodshot. By showing his arrest was unlawful to begin with, Wallace was able to, in effect, have his DWI charges dismissed.

Case Law Example: People v. Fay

State Trooper Nigro was conducting a traffic stop when he observed Ms. Fay drive past him with what he later described as “a startled look.” After concluding his original traffic stop, Nigro again encountered Fay’s vehicle on the road. He trailed the vehicle and pulled it over when it committed a turn-signal violation. Much to Nigro’s surprise, he found Fay now in the passenger seat of the vehicle. The driver was her boyfriend. Detecting a strong odor of alcohol, he evaluated whether the driver, Fay’s boyfriend, appeared intoxicated; he did not. Next, Nigro questioned Fay and discovered that she had been drinking. After failing several field sobriety tests, Fay was charged with a DWI.

Before trial, Fay’s attorney argued the charges should be dismissed. The attorney explained that the evidence gathered was unlawful because the officer had no lawful basis to question Fay to begin with; in other words, the officer lacked probable cause. The court examined Fay’s claim according to a framework established in a prior case, People v. De Bour. The framework sets out different levels of police encounters with people and when they are lawful. Applying this framework, the court took issue with the questioning of Fay. It noted that under the De Bour framework, the police officer’s interaction with Fay was unlawful on two levels. 

First, police questioning that leads someone to believe they are being suspected of some wrongdoing requires that the police have an evidence-based suspicion that a crime is being committed or is about to be committed. Here, the officer’s suspicion was not sufficient to justify questioning Fay in this way, as a “startled look” is simply not enough in the eyes of the law. Second, to “forcibly stop and detain someone,” the officer must have reasonable suspicion that the person committed a crime. Again, the “startled look” was not enough to qualify as reasonable suspicion justifying the officer detaining and questioning Fay. 

Given that the officer’s questioning of Fay was unlawful and he lacked probable cause, the court concluded the State’s evidence, gathered on the basis of that unlawful questioning, was the “fruit of the poisonous tree.” The evidence was thrown out, and the charges were dismissed.

Insufficient Evidence to Convict

If the State has enough valid evidence to take the case to trial, the accused person can still have their charges dismissed by preventing the State from securing a conviction at trial. In a criminal case, the person or entity bringing the charges is responsible for proving the accused person’s guilt “beyond a reasonable doubt”. This is known as the “burden of proof.” The “beyond a reasonable doubt” standard means that there is no reasonable view of the evidence to support the conclusion that the accused person did not commit the charged offense. 

Proving guilt beyond a reasonable doubt is a high bar. The defense’s job at trial is to undermine the State’s case by casting doubt on their evidence. If done well, this can result in one’s charges being dismissed. There are many ways to attack the State’s evidence, such as:

  • Arguing the BAC test results are invalid or unlawful
  • Questioning the accuracy of the BAC test results
  • Undermining the police officer’s testimony regarding signs of intoxication

Consider the following cases in which drivers’ DWI charges were dismissed because the State’s evidence was insufficient to secure a conviction.

Case Law Example: People v. Schulman

When Mr. Schulman sustained significant injuries in a motor vehicle accident, he was first questioned by police officers in the ambulance. They asked to perform a field sobriety test, but Schulman refused, pleading with the officers to leave him alone and allow him to be taken to the hospital. At the hospital, the police officers again questioned Schulman and asked him to submit to chemical BAC testing; Schulman again refused.

Without Schulman’s BAC test results, the State was forced at trial to rely on the testimony of the two police officers that arrived at the scene of the accident. Both officers testified that Schulman presented signs of intoxication as far as they could tell. They recalled that Schulman reeked of alcohol, had glassy, bloodshot eyes, and had a half-full beer can in the center console of his vehicle. They further noted that he refused to submit to field sobriety tests at the scene of the accident. This was all the evidence the State presented.

The court concluded the State had failed to prove beyond a reasonable doubt that Schulman was driving while intoxicated and dismissed the DWI charges. The court took issue with how little convincing evidence the State presented. It noted that the officers’ testimony was relatively weak given that they had not successfully conducted any field sobriety tests. Even if this evidence was difficult to obtain because of Schulman’s injuries and refusal, the State offered no independent evidence of Shulman’s intoxication, such as testimony by the paramedics or medical records of Schulman’s treatment at the hospital. 

The court stressed that without stronger evidence, it could not rule out alternative explanations, such as that Schulman’s signs of intoxication might be the result of his injuries from the crash or that he somehow carried an odor of alcohol without being intoxicated or impaired. None of the testimony presented was in and of itself enough to prove Schulman was driving while intoxicated, and since the court could reach the opposite conclusion, that he was not driving while intoxicated, based on the evidence presented, the State had failed to prove his guilt beyond a reasonable doubt.

Case Law Example: People v. Thompson

State Trooper Wentland charged Mr. Thompson with a DWI after an anonymous tip led Wentland to discover Thompson in an intoxicated state. Thompson was sitting in his vehicle in a McDonald’s parking lot with the keys in the ignition. He failed several field sobriety tests, reeked of alcohol, and later admitted to Wentland at the police station that he had been drinking and driving. At trial, Thompson’s attorney asked the court to throw out Thompson’s admission of guilt at the police station and dismiss the charges because there was no lawful proof that Thompson had driven while drunk.

At a pre-trial hearing, the court concluded Thompson’s admission of guilt at the police station was indeed legally invalid and did not allow it to be considered at trial. It pointed out that since Wentland questioned Thompson about his drunk driving while at the police station after having arrested him, it qualified as an interrogation while in police custody. This meant that Thompson should have been read his Miranda rights (right to remain silent, right to an attorney, etc.) before being questioned. Since this did not happen, his incriminating statements were involuntary and could not be heard at trial. 

Without this evidence at trial, the State struggled to put on a convincing case. The court ultimately dismissed the charges, finding there was not enough evidence to prove beyond a reasonable doubt that Thompson had driven while intoxicated. It specifically pointed to the fact that the offenses charged were defined as “operating a motor vehicle” while intoxicated. Thompson’s keys were in the ignition, but he was not driving when the officer approached him. In fact, Thompson’s engine was not even turned on. The court concluded that without evidence that Thompson drove his car while intoxicated before Wentland discovered him, Thompson was not shown to have been “operating” his motor vehicle within the meaning of the law and therefore could not be convicted.

Procedural Error

A final way to have your DWI charges dismissed is to successfully expose a procedural mistake made by the State. A DWI is a criminal offense, so people charged with a DWI offense are afforded certain legal protections designed to protect people accused of crimes. Many of these protections are procedural rules intended to make the process as fair as possible. When the State makes a procedural error, the charges can be dismissed on the basis that the error subjected the accused person to unacceptable unfairness. Below are cases where people accused of a DWI offense had their charges dismissed because of procedural errors.

Case Law Example: People v. Murry

Mr. Murry was charged with two felony DWIs and a traffic infraction in May 1995. In October of that year, the court decided to reduce his felony DWI charges to misdemeanors and throw out his traffic infraction charge. In November 1995, the State was granted a “superseding indictment.” This means Murry’s old October charges were replaced with amended charges. In February 1996, however, the court threw out the State’s amended charges and reinstated Murry’s old October charges, citing the fact that the State had failed to follow a certain procedural rule.

The defense next asked the court to dismiss the charges altogether. Murry’s attorney pointed out that his client’s right to a speedy trial had been violated because it had been more than six months since the criminal action had been initiated in May 1995. The State complained that the time between the amended charges in November 1995 and the reinstatement of the reduced charges in February 1996 should not count towards the six-month period. 

The court did not buy the State’s argument. It reasoned that it was the State’s procedural mistake that caused the wasteful delays between November 1995 and February 1996, since the amended charges were only thrown out in February because the State violated a procedural rule the previous November. Counting this time period in the six months, Murry’s constitutional right to a speedy trial was violated, and his charges essentially expired. The court dismissed the charges altogether.

Case Law Example: People v. Wilkins

Mr. Wilkins was arrested when Rye Police found him slumped over the steering wheel of his Mercedes-Benz with the engine running, blocking a woman from entering her driveway. The officers testified at Wilkins’s DWI trial that Wilkins had failed several field sobriety tests before being arrested and transported to the police station, where he eventually submitted to a breathalyzer test. After registering a .21% BAC during his DWI arrest, Wilkins saw his aggravated DWI charge (driving with a BAC of .18% or greater) dismissed at trial because of a massive procedural blunder: The State failed to establish that it was Wilkins who sat down and took the breathalyzer test, the results of which were presented at trial. 

At Wilkins’s trial, his attorney asserted this forceful objection to the State’s case. He complained that the officer that claimed to have administered Wilkins’s breathalyzer test had not identified Wilkins as the person to whom he administered the test. The officer had indeed confirmed that he "couldn't identify Rich [the defendant] as being the guy who [he] gave the test to." The court had to agree with Wilkins. 

It conceded that it might be rational to conclude that Wilkins was the one to give the sample, since Wilkins was in police custody at the time and Wilkins’s information was listed in connection to the sample. However, the court pointed out that chemical BAC test evidence must have a clear chain-of-custody, meaning there must be a clear record of the sample’s journey from the time it was taken to its final destination. Here, the first link in that chain was missing, since the officer that administered the test could not confirm it was Wilkins that gave the sample. The arresting officer could not even confirm he was present when the test was administered or that he identified Wilkins for the officer who administered the test. Without reliable evidence of Wilkins’s BAC, the court was forced to dismiss his aggravated DWI charge, since a required element of the aggravated DWI offense is that the accused driver is shown to have had a BAC of .18% or greater.


Frequently Asked Questions

Can you get your DWI dismissed if you have past DWI convictions?

Yes. Past DWI convictions should only really affect the penalties you face if you are convicted of your current DWI charge. Ordinarily, having past DWI convictions will have no effect on whether your charges can be dismissed. This makes sense when you consider why DWI charges are dismissed. For example, whether the State has enough lawful evidence in your present DWI case has nothing to do with any past DWI convictions.

Do you get your license back if your DWI is dismissed?

It depends. If your license has been temporarily suspended pending your DWI trial, as often happens, you can show the Department of Motor Vehicles proof that your charges were dismissed, and they will be able to reinstate your license. There are, however, some exceptions. One major exception is if your license was suspended or revoked because you refused a chemical BAC test. Chemical test refusal is a civil offense that carries penalties independent of your DWI case, so having your DWI charges dismissed does not entitle you to have your license reinstated when it has been suspended or revoked as a penalty for refusing a chemical test.

Does a DWI still show up on your record if your charges are dismissed?

No. NY Crim Pro L § 160.50 (2019) provides that when one’s criminal charges are dismissed, the court will order the records related to those charges to be sealed, unless the court determines it is in the interest of justice for the records to remain public. When records are “sealed,” they are no longer available to the public. The only people or entities that can access them are those listed in §160.59(9), which lists certain governmental agencies and other narrow circumstances, such as during a background check if you apply for a gun license.

Can you be prosecuted a second time if your DWI charges are dismissed?

Not usually. NY Crim Pro L § 40.20 (2019) provides that one cannot be twice prosecuted for the same offense or separately prosecuted for two offenses based on the same act, with some exceptions. This means that for the standard DWI, once your charges are dismissed those charges cannot be prosecuted again, unless they are brought for a later, separate incident of suspected drunk driving. Also, the State cannot prosecute you for one DWI offense and then, if that charge is dismissed, prosecute you a second time for a different DWI offense based on the same incident of suspected drunk driving. A knowledgeable attorney can better evaluate the precise circumstances of your case to provide a more accurate answer, but generally, it is very unlikely for a second DWI prosecution to be lawful if the first one resulted in the charges being dismissed.


Who Should I Contact if Charged with a DWI in New York?

There should be two clear takeaways from this article. First, though a difficult task, there are many ways to have your DWI charges dismissed. Second, the legal arguments necessary to achieve this outcome, while numerous, can be rather complicated. This is where the services of an experienced DWI defense attorney become vital. 

Our knowledgeable attorneys at Rosenblum Law stand ready to craft the most effective arguments and strategies tailored to your specific circumstances to help you achieve the very best possible outcome in your DWI case. Whenever circumstances permit, our attorneys skillfully advocate for our clients’ DWI charges to be dismissed. So, if you or a loved one have been charged with a DWI offense, take the first step toward a successful defense. Email or call us at 888-815-3649 for a free consultation.

Author Bio

Adam H. Rosenblum

Founding Attorney Of Rosenblum Law

Adam H. Rosenblum is an experienced and skilled traffic violations and criminal defense attorney. Mr. Rosenblum provides expert and aggressive representation to those facing points on their drivers’ licenses and the associated fines and surcharges.

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