By: Adam H. Rosenblum Esq. | Last Updated:
Being arrested for driving while intoxicated (DWI) in New York is incredibly serious. The first thing clients wonder once the dust settles is how they can beat their DWI charge and avoid the looming consequences. Winning a DWI case requires two things: a good attorney and an expansive sense of what “winning” looks like.
First, you will want a talented DWI defense attorney with extensive experience with DWI cases. There are a variety of arguments that can lead to an acquittal or at least minimize the consequences an accused driver might incur. The value an attorney provides is threefold: knowledge of these arguments, a keen ability to apply the correct arguments depending on the facts of the case, and the capacity to convincingly present these arguments to a judge or jury.
A second thing you will need to do is expand your definition of what “winning” a DWI case means. Though the ideal outcome for anyone charged with a DWI offense is to be found not guilty, this is also the most difficult outcome to achieve. In the DWI context, “winning” is anything your attorney can do to minimize the consequences you face and to protect your right to be treated fairly in the criminal process. Following are ten examples of when someone charged with a DWI offense was able to “win” with the help of an experienced attorney.
1. Confrontation Clause: People v. Orpin
Mr. Orpin was arrested for a DWI when he failed several field sobriety tests after being flagged at a DWI checkpoint for emitting a strong odor of alcohol and appearing intoxicated. He later consented to a breath test and registered a .08% BAC. At trial, the State presented written certifications verifying the reliability of the breathalyzer machine. Orpin’s attorney complained that the breath test results should not be considered at trial. The attorney claimed that not being able to cross-examine the people that certified the reliability of the breathalyzer violated the Confrontation Clause.
The Confrontation Clause is a provision of the Sixth Amendment to the U.S. Constitution. It provides that in a criminal trial, the defendant has a right to confront any witnesses against them. In Crawford v. Washington, the U.S. Supreme Court clarified that the Confrontation Clause applies to documents that are testimonial in nature. A document is testimonial when it appears to have been prepared for the purposes of being used in a court case rather than produced in the ordinary course of business. The court in this case pointed out that since breathalyzer certification documents have no other purpose than to be used in court when breathalyzer test results are challenged, the certification documents are testimonial in nature and therefore subject to the Confrontation Clause. This means that when breathalyzer certification documents are challenged by the defendant, the defendant must have the opportunity to cross-examine the people that certified the breathalyzer. Since Orpin did not get the opportunity to do that here, the breath test results were invalidated. The court concluded that without the breath test results, there was only enough evidence to convict Orpin of the lesser DWAI offense.
This case highlights two interesting aspects of a DWI defense. First, since a DWI is a criminal offense in New York State, those accused of committing a DWI are subject to certain constitutional protections as criminal defendants. When one’s constitutional rights are violated in the course of a criminal trial, one can profit in various ways, including by one’s charges being dismissed, receiving a retrial, and being convicted of a lesser offense. Second, this case underscores the idea that “winning“ a DWI case is much more than purely being found not guilty. While Orpin was not ultimately acquitted of all charges, having his misdemeanor DWI charge reduced to a traffic infraction DWAI offense was a significant achievement.
2. Unlawful Traffic Stop: People v. Rocket
Mr. Rocket was driving along Route 44 when he spotted up ahead several vehicles and flashing lights. He would later testify that he thought he was approaching the scene of an accident. Really, it was a DWI checkpoint. Nevertheless, Rocket exited Route 44 before he hit the checkpoint, which prompted the police to pull him over on suspicion of a DWI. After following all the necessary procedures, the police officers were convinced Rocket was driving while intoxicated, and Rocket was arrested and charged with a DWI.
At trial, Rocket’s attorney took issue with the police’s reason for stopping Rocket in the first place: that Rocket appeared to avoid the DWI checkpoint. The question put before the court was whether it is lawful for a police officer to stop a vehicle for avoiding a DWI checkpoint when that vehicle has not broken any traffic laws or otherwise invited suspicion. The court, after analyzing prior New York cases as well as cases from other states, took issue with the idea of the police stopping people just because they avoid a DWI checkpoint. They reasoned that this is a violation of the driver’s privacy and could amount to an unreasonable search in violation of both the U.S. and New York Constitutions. For example, what if Rocket exited Route 44 because he lived right off the exit? Surely it would be unreasonable to stop every person that had to exit right before a DWI checkpoint on suspicion of a DWI. The court concluded the traffic stop was unlawful, and since any evidence coming from that stop was therefore inadmissible, Rocket’s DWI charge was dismissed.
This case illustrates an important defense against a DWI: arguing the traffic stop was unlawful to begin with. For a traffic stop to be lawful, the police officer must have “probable cause to believe that the driver of an automobile has committed a traffic violation.” Probable cause is basically having reasonable suspicion, based on the available evidence, that a crime has been committed, is being committed, or is about to be committed. Without probable cause, any evidence arising from the unlawful traffic stop is no longer admissible in court, which basically guts the State’s case and leads to the charges being dismissed.
3. Procedural Blunder: People v. Van Buren
Mr. Van Buren was indicted by a grand jury for a felony DWI charge. He was charged with a felony DWI because he had been convicted of a DWI offense less than ten years before his present DWI charge. To prove that Van Buren had been convicted of a DWI offense in the past ten years, the State showed the grand jury a certificate of conviction that indicated a “Robert L. Van Buren” had been previously convicted of a DWI less than ten years prior. Van Buren’s attorney shrewdly challenged the grand jury’s decision to indict his client on a felony charge.
The attorney argued that the certificate of conviction alone was not enough to verify that Van Buren had a prior DWI conviction in the past ten years. A certificate of conviction is a simple form containing text indicating the details of a conviction; it has no photos or other clear identifying information beyond the convicted person’s name and date of birth. The attorney’s point was that based solely on the certificate of conviction, there was no way for the jury to know to a reasonable certainty that the “Robert L. Van Buren” previously convicted of a DWI was the same person as the defendant in this case. The court agreed and reduced Van Buren’s charge to a misdemeanor DWI.
Seemingly small procedural mistakes can have big implications. Van Buren avoided the heightened risks of a felony conviction solely because the State fumbled in failing to provide enough evidence to prove Van Buren’s previous DWI conviction. Only a seasoned attorney would genuinely suspect that arguing “maybe the Robert L. Van Buren with X date of birth named on the certificate of conviction is a different person than my client, Robert L. Van Buren with X date of birth.” Though this argument might seem absurd, the fact is that the law does its best to promote fairness and protect everyone involved in a legal dispute by observing rigid procedural rules. Also note that procedural problems cut both ways. Failing to hire an expert attorney can result in procedural mistakes being made on the defendant’s side, which can severely damage one’s case.
4. Lesser Included Offense: People v. Hoag
When the police stopped Ms. Hoag after observing her erratic driving, they found a heavily intoxicated woman behind the wheel and an eleven-month-old child in the back seat. Hoag was arrested and charged with a DWI. At trial, since Hoag had refused the breathalyzer test, the State relied on the testimony of the people at the scene of the traffic stop. Both the police officers and the social services worker who showed up to collect the child testified that Hoag was uncooperative and appeared rather intoxicated. Hoag was ultimately convicted.
Hoag appealed her conviction on the basis that the judge refused to submit the lesser included DWAI offense to the jury when Hoag’s attorney requested it. A lesser included offense is an offense that applies to the same conduct as the offense being charged but is less severe than the charged offense. For example, a DWAI is a lesser included offense of a DWI. By the legal definitions of the two offenses, when someone drives while intoxicated by alcohol, a DWI offense, they have necessarily also driven while their ability to do so is impaired by alcohol, a DWAI offense. The DWAI offense is less severe than the DWI offense. The point of submitting a lesser included offense is so the jury can choose which offense is most fitting of the evidence and the circumstances. By refusing to submit the DWAI offense to the jury, the judge deprived Hoag of a less severe outcome.
On appeal, the court overturned Hoag’s conviction and ordered a retrial. The issue was not merely that the judge did not submit the DWAI offense. The law does give judges the discretion to decide when to submit a lesser included offense based on the circumstances and evidence. The trouble was that the judge declined to submit the DWAI offense for an invalid reason. The judge’s refusal was based on a misunderstanding of the law. The judge mistakenly believed the DWAI offense couldn’t be submitted because it requires a BAC test result, which Hoag did not have since she refused BAC testing. This view of the law was incorrect, as a prior case had established a DWAI conviction does not require a BAC test result.
This case raises a very technical category of DWI defense that revolves around the law being applied. At a trial, the judge’s primary role is to apply the legal rules and make sure the trial is conducted in a lawful manner. A trial therefore involves many decisions of law that aren’t directly to do with the evidence or facts of the alleged offense. These purely legal decisions are significant because they set the ground rules that affect things such as what the jury sees and how they think about the case. These decisions can affect a trial in the same way a referee’s decisions can affect the outcome of a sporting event. A talented attorney will constantly be on the lookout for potential mistaken applications of the law by the judge to protect their client’s right to a fair trial. Identifying these mistaken legal decisions can also provide a fallback option on appeal if the trial has an adverse outcome.
5. Inadmissible Evidence: People v. Johnson
When police officer Loretta Weisner observed Mr. Johnson’s erratic driving, her attempt to pull him over was met with Johnson’s attempt to flee, first in his vehicle, and then on foot. When the officers finally apprehended him, they observed his bloodshot eyes, slurred speech, and the odor of alcohol. When they searched his car, they found a half empty beer can. Johnson was arrested that night and taken to the emergency room, then the police station. At the emergency room, Johnson was treated for a broken clavicle. The medical professionals noted on his records that he was intoxicated. Later at the police station, Johnson exercised his right to remain silent and indicated he wanted to exercise his right to an attorney.
At Johsnon’s trial, the prosecution presented to the jury a video of Johnson being booked at the police station. The jury observed him exercising his right to remain silent and right to an attorney. The jury was also shown Johnson’s medical records from that night’s trip to the emergency room, which included the physician’s notes suggesting Johnson was intoxicated. Johnson was convicted of a DWI, and in light of a prior DWI conviction, he was sentenced to two to six years in prison. Johnson appealed his conviction.
The appeals court reversed Johnson’s conviction and ordered a new trial. They found two things wrong with the first trial. One, when the jury was shown the video of Johnson being booked at the police station, the judge failed to inform the jury that they were not to use the fact that Johnson wanted to exercise his right to an attorney against him. This was wrong because one’s exercise of their right to an attorney may not be used against them in a criminal trial.
A second mistake was that the presentation of Johnson’s medical records showed the jury the physician’s notes suggesting Johnson was intoxicated. The court said this was problematic because ordinarily, when a document presents testimony against the defendant, the person that produced the document should be available for cross examination by the defense. As noted earlier in this article, this is because the Confrontation Clause in the U.S. Constitution holds that a criminal defendant has the right to confront witnesses against them. The exception is when the document is merely a business record. The appeals court pointed out that for this exception to apply, the State would have to show that the question of Johnson’s intoxication was relevant to treating his broken clavicle at the emergency room, which they didn’t. So, without the doctors being available for cross examination and without the State showing the intoxication notes were relevant to Johnson’s purpose for being at the emergency room that night, the notes should not have been presented to the jury.
This case illustrates one of the primary values an attorney can provide: protecting a client’s right to a fair process. Johnson faced two to six years in prison from a jury verdict that may have been biased by evidence they should not have seen. An experienced attorney will leverage their knowledge of the procedural aspects of the law to ensure their client gets a fair shot at justice. A not so well known fact is that if something goes wrong at a trial, the court doesn’t necessarily automatically make it right. Usually, the defense attorney is responsible for bringing the mistake to the court’s attention.
6. Strategic Guilty Plea: People v. Snyder
When Mr. Snyder was arrested and charged with a misdemeanor DWI offense, the prosecution did not realize that he already had two prior misdemeanor DWI convictions, making him eligible for a felony DWI. Snyder acted swiftly in pleading guilty to the misdemeanor DWI charge and being sentenced before the prosecution learned of his prior convictions. After Snyder was sentenced, the prosecution, having just learned of his prior DWI convictions, moved to charge him with a felony DWI. Snyder challenged this action, claiming he could not be charged twice for the same misconduct.
In this case, the law was on Snyder’s side. The law provides that someone cannot be prosecuted twice for the same offense. One exception to this rule is that a defendant may not act to cause the prosecution to prosecute them for a lesser offense than what they are really eligible for. Actions triggering the exception could include making misrepresentations to the police or to the court. Here, the State argued they were allowed to prosecute Snyder again because Snyder had acted to cause them to mistakenly prosecute him for a lesser offense than what he was eligible for. Their theory was that by not revealing his prior DWI convictions and instead quickly pleading guilty to the misdemeanor DWI offense, Snyder had acted to cause the State to mistakenly prosecute him for a misdemeanor DWI offense when he knew that he was actually eligible for a felony DWI.
The court disagreed, concluding the exception did not apply in this case. They reasoned Snyder did not make any misrepresentations to cause the State to charge him with a misdemeanor DWI rather than a felony DWI. Though he did not tell the State about his prior DWI convictions, he was under no duty to do so. Further, though Snyder may have pleaded guilty rather quickly as a strategic move to avoid a felony charge, this sort of maneuver is vastly different from making misrepresentations to lead the State to bring the wrong charges. On this basis, the court found that prosecuting Snyder for a felony DWI after he had pleaded guilty to the misdemeanor DWI was unlawful.
When fighting a DWI charge, it’s vital to be aware of all the relevant circumstances and honest with oneself about what outcomes are most realistic based on these circumstances. Snyder could have easily insisted on pleading not guilty to the misdemeanor offense and fighting the charges at trial. However, a DWI case calls for a risk-reward analysis to determine the most realistic best case scenario for one’s particular case rather than the best case scenario generally. For Snyder, the potential reward of walking free was far outweighed by the risks of losing at trial and incurring the penalties for a felony DWI charge. Conversely, the reward of pleading guilty to a lesser misdemeanor DWI offense far outweighed the risks of being found guilty of a felony DWI at trial.
Snyder rightly concluded he was better off hedging his bets and accepting the misdemeanor penalties than risking a felony conviction, especially if the State’s case against him was strong. Part of the value a talented DWI defense attorney can provide is using their experience and knowledge of the law to help one charged with a DWI evaluate the risks and rewards of the various potential approaches to one’s case.
7. Inadmissible Preliminary Breath Test: People v. Thomas
When Mr. Thomas crashed into multiple vehicles in Rochester, causing the death of an innocent driver, he was arrested and charged with several criminal offenses. The police officers that arrived on the scene observed classic signs of intoxication in Thomas, who went on to register a .14% BAC when he took the preliminary breath test, or “PBT.” At trial, the State presented the PBT results as evidence of Thomas’s intoxication. Thomas’s attorney challenged the PBT results, claiming they were inaccurate because Thomas’s lip was bleeding at the time the PBT was administered. An expert for the defense testified that the presence of blood would almost certainly skew the PBT results. The prosecutor responded by claiming there was absolutely no evidence that the blood from Thomas’s cut lip had affected the PBT results. Thomas was ultimately convicted of a DWI. He appealed his conviction on the grounds that the PBT results should not have been permitted at trial in the first place. He also claimed the prosecutor had lied about there being a lack of evidence that the bloody lip affected the PBT results and that this lie biased the jury.
The court agreed with Thomas and ordered a retrial. They firstly explained that the PBT results should not have been admitted at trial. A PBT is often administered during a DWI traffic stop. It involves the use of a portable device to test a driver’s BAC using their breath. PBTs are generally considered less accurate than BAC tests administered at the police station. For this reason, PBT results are not admissible at trial unless either the State proves they are scientifically accurate or they are used for the limited purpose of proving the police officer had reasonable grounds to arrest the driver.
Here, neither of these things happened. The State never proved the PBT results were scientifically reliable and accurate, and Thomas never challenged the police officer’s reasonable grounds for arrest. Having established that the PBT results should not have been permitted at trial, the court went on to concede that had this mistake been harmless, they might not have needed to overturn the conviction and order a retrial. However, the mistake was made harmful when the prosecutor falsely claimed there was no evidence that Thomas’s bloody lip affected the PBT results. When the inappropriate PBT evidence was validly challenged, the prosecutor had essentially ensured the evidence would unfairly influence the jury by using a plainly false statement to contest the valid challenge. The court concluded that the mistake allowing the PBT results to be presented at trial, combined with the prosecutor’s false statement, biased the jury enough to support ordering a retrial.
This case is yet another example of how complex the law can be and, consequently, how crucial an experienced attorney is to success in a DWI case. At every turn in a DWI trial, there are multiple rules and regulations affecting what can be presented and how it can be presented. A defense attorney will hold the court accountable by scrutinizing every decision and action, seeking to ensure everything about the presentation of the State’s case is lawful. These complexities cut the other way as well, meaning the defense is also responsible for presenting their case consistent with all the rules and regulations the law sets forth. This is one reason why it is not advisable for a DWI defendant to try to represent themselves.
8. Excessive Fine: People v. Ingham
After a night of heavy drinking upon receiving the final divorce papers from her husband of 11 years, a distraught and intoxicated Mrs. Ingham took to the road at 6:00 the next morning. Ingham was pulled over and arrested on suspicion of a DWI. At the police station she registered a BAC of .24% and was charged with a DWI, to which she later pleaded guilty.
During the sentencing phase of Ingham’s case, her attorney requested that the court take into account her lack of financial resources. Examining the relevant laws, the court observed that the DWI law gave the court limited discretion, allowing them to choose a fine between $350 and $500, at least a year in county jail, or both a fine and imprisonment. They also recognized, however, that both the Eighth Amendment to the U.S. Constitution and Article I, Section 5 of the New York State Constitution provide that excessive fines shall not be imposed. They read “excessive fines” to mean a fine being excessive relative to the individual’s capacity to pay it rather than a fine being excessive in and of itself.
The court concluded Ingham did not have the financial means to pay even the lowest available fine of $350 and that it would be unjust to sentence Ingham to a year in county jail merely because she lacked the financial capacity to pay a fine. They ultimately sentenced her to one year of conditional discharge, meaning she was not penalized on the condition that she would be penalized if she were ever charged again with this offense.
Yet another less intuitive form of “winning” in a DWI case is being able to minimize the penalties one might incur at the sentencing phase. Courts not only have the discretion to order penalties at the lower end of what the law offers as being appropriate, but also have the latitude to employ alternative sentences, such as community service and house arrest. So, even in being found guilty of a DWI offense, considered “losing” to many, there is yet much left to “win” in minimizing the severity of one’s sentence.
9. Suppressed BAC Test: People v. Ellis
Mrs. Ellis tragically caused the deaths of her friend and her mother when, while driving them both, she crashed into a telephone pole, plunging their vehicle into the Allegheny River. Ellis was rushed to the hospital where a police officer would later question her without having placed her under arrest. At some point, the officer asked Ellis to take a blood test. He informed her that if she refused, her license would be revoked and that her refusal would be used as evidence against her at any potential DWI trial. Ellis consented to the blood test, which revealed she had an extremely elevated BAC. She was later arrested and charged with a DWI.
At a preliminary hearing before trial, Ellis’s attorney argued the blood test results should not be allowed at trial because the police officer’s instructions were false and therefore coerced Ellis into taking the blood test when she didn’t have to. The court agreed and refused to allow the blood test results to be presented at trial. They explained that the police officer’s warnings about the consequences of refusing the blood test were factually inaccurate.
New York does have an implied consent law, which basically means New York drivers will be punished if they refuse a BAC test because by driving on New York’s public roads, drivers consent to taking a BAC test if they are suspected of driving while intoxicated. The warnings that the officer gave Ellis are the same warnings officers are legally required to give whenever they ask one to submit to a BAC test. The court noted, however, that the consequences of refusing a BAC test only result if a driver refuses a BAC test after they have been placed under arrest. The officer had not placed Ellis under arrest when he requested the blood test, so his warnings were factually inaccurate; Ellis would not incur those consequences for refusing the blood test. The court concluded that Ellis’s consent to the blood test was therefore not actual consent. She was instead coerced by the officer’s false warnings.
The preliminary hearing where Ellis challenged the BAC test is known as a “suppression hearing.” At a suppression hearing, a DWI defendant’s attorney will often argue that the State’s evidence cannot be presented at trial because it was obtained unlawfully. This hearing is vital because depriving the State of key evidence can severely undermine their case. In some cases, such as when the police officer’s initial traffic stop was unlawful to begin with, so much of the State’s evidence can be suppressed that the State no longer has any basis whatsoever to take the case to trial.
Being successful at a suppression hearing still doesn’t necessarily mean a defendant will escape without a conviction. However, in expanding the idea of what “winning” looks like in a DWI case, we can acknowledge that any significant positive result of suppressing evidence is a “win.” For example, suppressing the BAC test results might lead to a conviction for a lesser DWI offense, which can in turn mean less severe consequences.
10. Suppressed Chemical Test Refusal: People v. O’Reilly
After being pulled over for his erratic driving, Mr. O’Reilly failed several field sobriety tests and was arrested on suspicion of a DWI. At the police station, O’Reilly was asked to submit to a chemical test of his BAC and was read the warnings concerning the consequences of refusing a chemical test. O’Reilly responded that he did not wish to interact with the officer until he had spoken to his attorney. The officer gave O’Reilly an opportunity to make a phone call, and O’Reilly did speak to someone. Assuming O’Reilly had spoken to his attorney, the officer asked him if his attorney had advised him to take the chemical test or not. O’Reilly responded “no.” The officer then asked O’Reilly to write “consent” or “refuse” on the chemical test form. O’Reilly wrote “refuse” and signed his name.
At the suppression hearing, O’Reilly’s attorney asked the court to disallow any evidence of O’Reilly’s refusal of the chemical test from being presented at trial. The court concluded that this evidence could not be presented at trial because the circumstances surrounding O’Reilly’s refusal were unlawful. The court recognized that a DWI defendant has the right to consult an attorney before deciding whether to consent to a chemical test as long as they request to speak to an attorney and doing so does not pose a danger of delay of the chemical test.
The court pointed out several mistakes the officer made in the course of their interaction with O’Reilly. First, the officer’s chemical test requests made before O’Reilly talked to his attorney were unlawful, since O’Reilly had requested to speak to an attorney first. It was also unlawful for the officer to ask O’Reilly whether his attorney had advised him to take or refuse the chemical test, since this is confidential communication between an attorney and their client. Finally, O’Reilly answering “no” to the officer’s question was not a clear refusal of the chemical test. The answer was ambiguous, as it could have meant either that the attorney had not advised him at all on the matter or that the attorney had advised him to not take the test. The court cited the legal standard that in order to be admissible at trial, a defendant’s refusal of a chemical test must be clear and persistent. Since O’Reilly’s answer of “no” to the officer’s vague question was not a clear and persistent refusal of the chemical test, evidence of this refusal was not allowed to be presented at trial.
One big advantage DWI defendants carry is that there are many opportunities for error in the course of a DWI investigation and arrest. There are rigid guidelines police officers must follow when dealing with a DWI arrest, and it is not uncommon for these guidelines to be disobeyed by a careless officer. A skilled DWI defense attorney will identify these mistakes and leverage them to invalidate key pieces of evidence.
Who Should I Contact If I’ve Been Arrested for a DWI?
As the above cases illustrate, “winning” a New York DWI case is not always as straightforward as going to trial and being found not guilty. As a matter of fact, in most cases, this approach is not the most favorable in light of all relevant circumstances. Winning is a broad concept when defending against a DWI charge. The objective is always to remain realistic and minimize the consequences as much as is feasible in light of factors such as the strength of the State’s case, the lawfulness of the defendant’s arrest, and the risks of being found guilty at trial.
At Rosenblum Law, our dedicated DWI defense attorneys work tirelessly to protect our clients’ interests and achieve the best available outcomes. If you or a loved one have been arrested for or charged with a DWI, contact Rosenblum Law today. Email or call 888-815-3649 for a free consultation.