DUI Arrest. What to Do. Possible Available Defenses. How We Can Help.

A DUI arrest can lead to you being booked in jail and to an eventual conviction. With the representation of a competent attorney, it is possible to avoid a criminal conviction. The most important thing you can do when interacting with the police is to not say anything and demand that they let you speak to an attorney. You need to contact an attorney right away. You can call us at any time at 212-233-1233 or 212-233-1233, or you can send us an email at [email protected].

After the stop, if you are suspected of a DUI, you would be taken into police custody and processed for personal information, photo, fingerprints, and criminal background check, to name a few. If you’ve seen movies where a person arrested has been placed in an orange jumpsuit, that’s booking. And it could easily have become a part of your life experience.

If you have experienced a DUI arrest, you need to get a lawyer immediately. An arrest will appear in your record, but if you are not convicted, you may be able to have this arrest expunged.

Two aspects of a DUI arrest

There are two aspects of a DUI arrest in New York: the administrative and the criminal. Under the administrative aspect, the penalty is suspension or revocation of your driver’s license imposed by the state’s Department of Motor Vehicles. The criminal aspect, on the other hand, is subject to criminal laws under the jurisdiction of New York courts. If not handled carefully, you may be convicted, which can result in a criminal record for misdemeanor or felony which will be displayed for 15 years. A conviction can also affect your driving record, insurance rates, and employment.

What to do when you experience a DUI arrest

When you have experienced a DUI arrest in New York, it’s important to immediately consult a lawyer because there are defenses available to make sure you are not convicted or at the very least, give you leverage in plea bargaining with the prosecutor for a lower charge.

Some defenses available in a DUI arrest are:

• Miranda rights issues
• Failure to inform the accused about chemical test penalties
• Lack of probable cause for the traffic stop

You’ve probably seen a lot of movies and TV series where the police officer reads the person you is arresting his rights:

‘You have the right to remain silent, everything you say can be used against you in a court of law. You have a right to an attorney. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.”

Generally, the Miranda rights are not read during DUI arrests because most of the evidence is acquired prior to the arrest. However, if you are not read your Miranda rights or the reading of your Miranda rights is defective, anything you say after the arrest is inadmissible in any court of law. This could weaken the prosecution’s case, which can lead to a dismissal of the DUI charge or, at the very least, give you leverage to plea bargain for a lower charge.

For example, suppose you were arrested because the police assumed that you were driving while intoxicated. The police did not read you your Miranda rights. After the arrest, you admitted to the police that you were driving drunk. Can the prosecutor introduce this admission in court? Yes, but your lawyer should object on the ground that it is inadmissible because the admission was made after the arrest without the police reading you your Miranda rights.

Failure to inform you about chemical test penalties

When your car has been stopped for suspicion of driving under the influence of alcohol, the police may ask you to first take a portable breath test to see if you’ve consumed any alcohol. If this is positive, the second test is a chemical breath test done in the precinct after the DUI arrest which will determine your blood alcohol content.

If you have been stopped for suspicion of driving under the influence of drugs, you may be asked to take a blood, saliva, or urine test. A blood test, because it is more invasive, requires a warrant in most cases. All these tests are considered chemical tests.

If you refuse a chemical test, you will be charged with a common law DUI offense, which has the same consequences as registering a BAC of 0.08% or more. However, if you refused to take a chemical test and the police officer failed to provide you with a complete warning about the consequences of such refusal, your refusal is inadmissible as evidence in a court of law. Vehicle and Traffic Law § 1194(2)(f) states:

“(f) Evidence. Evidence of a refusal to submit to such chemical test or any portion thereof shall be admissible in any trial, proceeding or hearing based upon a violation of the provisions of [VTL § 1192] but only upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal.”

In the same example above, suppose your car was stopped by the police because the car was being driven haphazardly, appearing like you were drunk. The police wanted you to take a portable breath test but you refused. The police then immediately confiscated your driver’s license because refusal to take a breathalyzer test in New York triggers an automatic one-year license suspension and a fine of $500. The police also arrested you because they claimed that your eyes were red and your breath smelled like alcohol. The prosecution now wants to introduce evidence that you refused a breathalyzer test. Your lawyer can object because the police did not inform you that your refusal to take a chemical test can lead to certain consequences.

Suppose, however, that you refused and the police then read you a legally required refusal warning using the following language: “You are under arrest for driving while intoxicated. A refusal to submit to a chemical test, or any portion thereof, will result in the immediate suspension and subsequent revocation of your license or operating privilege, whether or not you are convicted of the charge for which you were arrested. If you refuse to submit to a chemical test or any portion thereof, your refusal can be introduced into evidence against you at any trial, proceeding, or hearing resulting from this arrest. Will you submit to a chemical test of your (breath/blood/urine) for alcohol?”

Despite being given this warning, you still refused to take the chemical test. Can the prosecutor introduce evidence of your refusal in the case as part of circumstantial evidence in a common-law DUI charge * that you were driving drunk? In this case, yes, your refusal can be used as evidence because you were given the appropriate warning regarding the effects of your refusal.

Lack of probable cause for the traffic stop

The Fourth Amendment of the Constitution guarantees people the right to be free from unreasonable searches and seizures. Part of this right requires police officers to have probable cause before making an arrest or a search or stopping a vehicle. If there is no probable cause, evidence acquired by virtue of the unreasonable stop is inadmissible.

Suppose in the example above that you were following road rules: you were driving within the speed limit, you were not driving haphazardly, you stopped at red lights and went go at green lights. Despite all of this, the police stopped your car for drunk driving. After taking the breathalyzer test, it was determined that you were driving while intoxicated because you had a blood alcohol content of 0.08%. The prosecutor now seeks to introduce evidence of the results of the breathalyzer test to prove that you were driving while intoxicated. Is this proper? No, Your lawyer should object to the introduction of this evidence because it was a fruit of a poisonous tree, the evidence having been illegally obtained from an unreasonable search and seizure. The police had no reason to stop your vehicle because your driving was normal. You were following all driving rules. Thus, any evidence obtained from the illegal stop should be considered inadmissible.

Above are only some examples of defenses one can use in a DUI arrest. There are other defenses available, such as failure to calibrate a breathalyzer test or the driver having a medical condition that mimics driving while intoxicated behavior. Whatever the reason for your DUI arrest, it’s important to ensure you are not convicted so that your record can remain clear. If you’ve experienced a DUI arrest, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].

*A common law DUI charge does not require proof of a specific blood alcohol content, but only proof that you operated a motor vehicle while intoxicated.

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