“THINK AND DRIVE, NOT DRINK AND DRIVE”

fTHE DO’S AND DON’TS OF DUI/DWI

With the fun-filled weekend nights out with friends, family barbeques and wedding season comes the unfortunate likelihood of being pulled over for a DUI or DWI offense (refer to Article 31 of New York’s Vehicle and Traffic Law: Alcohol and Drug-Related Offenses and Procedures §§1192-1199). Some of the most common DWI offenses include:

1. Driving While Intoxicated (DWI) - .08 BAC (Blood Alcohol Content) or higher
2. Aggravated Driving While Intoxicated (Aggravated DWI) - .18 BAC or higher
3. Driving While Impaired by Drugs of Alcohol (DWAI) – Impairment by illicit drugs, alcohol, or a combination
   thereof
4. Zero Tolerance - .02 to .07 BAC for any driver under 21 years of age.

The summer season presents opportunities to make new everlasting life memories –an arrest or jail time should not be one of them. Thus, it is extremely important to take a moment and think about the consequences of drinking and
driving.

HOWEVER, IF YOU DO FIND YOURSELF PULLED OVER BY AN OFFICER:

First and foremost, it is important to remember that now is not the time to fight a ticket or offense. Now is the time to cooperate with the officer. After the traffic stop, you can speak with an attorney about fighting the charge(s) in Court. However, arguing or fighting with an officer could lead to more adverse legal consequences, if not jail time for “Obstruction of Justice.”

There is no shortage of videos on the Internet of people reciting their constitutional rights at the scene of a traffic stop, only to find themselves hauled away for failing to comply with the officer’s requests.

Second, wait for the officer’s instructions. If the officer asks you to retrieve your license, insurance, and registration, indicate to the officer where in the vehicle you will retrieve these documents from, and then ask permission to retrieve these documents. This will alert the officer to any unexpected movements, such as reaching into a glove box or under the seat and allowing to them to seize any weapons or contraband in plain view under the “Plain View Doctrine” and further search the vehicle as a result of probable
cause.

KNOW YOUR RIGHTS:

While you may speak politely to the officer, you have the right to remain silent. You do not have to speak to the officer, but if you choose to exercise this right, make sure to communicate it clearly and
politely.

Do not consent to a search of your vehicle. The officer may have probable cause to search the vehicle if they find something illegal, but if they do not and they simply ask to search the vehicle, you may refuse consent to this search. If you refuse to consent, do so in a way that is courteous and avoids escalating the situation with the officer.

Do not voluntarily give your cell phone to the officer. The officer likely needs a warrant or other court ordered approval to search your cell phone. If the officer asks to search the phone, politely refuse consent to the search. If the officer demands to see the phone, then comply with the directive in an effort not to obstruct justice. Again, this is not the place to fight the legitimacy of the officer’s demands. The fight takes place in a court of law with a skilled attorney by your side.

THE QUESTION REMAINS: SHOULD I AGREE TO GIVE A BREATHALYZER SAMPLE?

The answer, like most difficult questions under the law, is that it depends. In New York State, refusing to give a Breathalyzer sample carries severe penalties. In most cases, the refusal may result in an arrest and an automatic license suspension of one year for first time offenders with a $500 fine, or an eighteen-month suspension and $750 fine for repeat offenders in addition to other potential surcharges and consequences. In certain serious scenarios involving motor vehicle accidents or serious injuries, officers may be able to obtain a court order to allow them to forcibly take a sample of bodily fluids for testing. This typically occurs in extreme cases.

If you have questions about what to do when pulled over by the police, please contact Jonathan Shalom, Esq. at The Law Offices of Jonathan Shalom at (516) 807-1748 for a consultation.

With offices conveniently located in Midtown Manhattan and Queens, NY, The Law Offices of Jonathan Shalom focuses its practice on State and Federal Criminal Defense and Healthcare law.

By Jonathan Shalom, Esq.