If you have been arrested for suspicion of driving while intoxicated, (DWI) be advised there are numerous factors that can work in your favor and result in the dismissal of your case.  DUI help is only one phone call away.

For a conviction to be rendered, the burden of proof is on the People of the State of New York, meaning the arresting officer and the prosecution. All aspects of the charges must be proven, which includes but not limited to proper administration of sobriety tests, chemical tests, probable cause and search and seizure protocols and following the law. Each of these human, mechanical or procedural factors are subject to error. We review all of them and determine which can work in your favor.

Our Office can help with DUI Advice, DUI Penalties, DUI Laws, DUI Charges, DUI Defense, DUI Arrest, DUI Felony, DUI Misdemeanor, DWI Penalties, DUI Suspension and much more.

The judgment of the officer who stopped you could be in error for any number of reasons. Furthermore, his administration of correct procedure after the arrest could be improper. Here are examples of what can hurt the prosecutions case and therefore help you.

If you are taken into custody or the police question you with the purpose of eliciting an incriminating response, they must read you your rights beforehand. If he fails to read you your Miranda rights and obtain a valid waiver of these rights, then any statements obtained after arrest, as long as they are the result of officer questioning and not so-called “spontaneous, unsolicited statements”, will most likely be thrown out of court.

After the officer stops you, he may not arrest you, put you in handcuffs and take you away for administration of chemical tests unless he has evidence that the crime of drunk driving has occurred. If this happens, you are entitled to what is termed suppression hearing during which a judge determines whether the arresting officer had probable cause. At these hearings, the officer is cross-examined by us, and while the judge usually sides with the prosecution, the defense has the opportunity to expose problems with the investigation. As a result, the District Attorney often times will lessen the charge or work with us to settle the case.

Sober drivers make mistakes all the time: inappropriately wide turns, weaving in and out of traffic, drifting out of their lanes. Drivers talk on cell phones or become distracted by the kids. The officer can mistake any of these as signs of drunk driving, when in reality they may be nothing more than unsteady driving from a merely inattentive, but sober driver.

Further, fatigue can cause a driver to exhibit these same erratic driving responses. The officer could have confused the miscues of a drunk driver with those of someone who is drowsy and exhausted.

You may not be pulled over arbitrarily by a police officer. There must be reasonable suspicion substantiated by specific articulable facts foe an officer to stop you. It this standard cannot be metin a suppression hearing, as described above, your case will likely be dismissed.

The Alcohol Behavior Research Laboratory at Rutgers University did a study, which demonstrated that police were no better at judging intoxication levels than were bartenders or social drinkers. Furthermore, none of these groups were able to judge levels of intoxication accurately more than one quarter of the time. When a prosecutor makes an appeal to the jury based on the officer’s ability in this regard, his opinion deserves to carry no special weight.

Additionally, police officers ordinarily cite smell of alcohol on the breath as proof of the suspects intoxication. Any chemist knows that alcohol (ethanol) has no odor. What causes the smell of alcohol are the other agents in the beverage. Drinking non-alcoholic beer will give the breath the odor that many officers will claim is the smell of alcohol. All that the odor of alcohol on the breath can indicate is that the suspect probably consumed some alcohol recently. It does not confirm that ones blood alcohol content (BAC) is greater than .08% level required to demonstrate legal intoxication.

Toxicologists know that a degree of mental impairment always precedes physical impairment, if the impairment is being caused by the consumption of alcohol. Police officers often report that persons they arrested were coherent in understanding and answering questions, and following directions throughout the investigation and arrest. It is well established scientifically, if mental impairment due to alcohol was not present, then it follows that neither was physical impairment due to alcohol. There may always be physical impairment stemming from any number of factors, such as sickness, injury, age, obesity, nervousness, or just a general lack of coordination. The prosecution must prove that any observed physical impairment is caused by the alcohol in question.

While speeding is against the law in itself, studies have demonstrated that speeding is not the correlative factor to driving while intoxicated. A speeding driver is as likely to be sober as drunk, and so speeding is not evidence that the driver is drunk. An officer alleging that he pulled a driver over for speeding as evidence of DWI maybe basing his action on invalid assumptions.

Police use preprinted forms filing DWI reports. These contain boxes which the officers simply check off to indicate that the suspect had “bloodshot and watery eyes,” “slurred speech,” “unsteady,” and a “flushed face.” In New York State there are presently no video cameras in the police cars, so these statements are usually left unchallenged by an inexperienced DWI lawyer.

As we all know, numerous other conditions can cause these symptoms. Allergies, exhaustion, sleeplessness or eyestrain could make ones eyes bloodshot. Anger over the traffic stop could cause ones face to flush. Embarrassment or becoming flustered could cause one to slur his or her words. Yet, the officer may not take these other causes into account, however obvious it is that these behaviors are just as likely to come from causes not related to alcohol consumption.


Many factors render Blood Alcohol Levels even more prone to inaccurate results than field tests.

Assuming that the test machines are in standard calibration and that the tests were administered flawlessly (a rare scenario), experts still acknowledge DWI breath tests contain an error rate of plus or minus .02%, and blood tests have a error rate of plus or minus .005%. When you add in the factors below, further questions can be raised about test results.

The breath test is designed to test the amount of alcohol present in the air in your lungs. If you suffer from heartburn, GERD (gastroesophageal reflux disease) or acid reflux, alcohol from the stomach can travel back from the stomach to the throat or mouth. When you blow into the breath test machine, what is measured in these instances is the mouth alcohol plus the air in your lungs. This can raise your reading on the test falsely by a factor of 4, meaning that an actual blood alcohol level of .04 would read as .16, double the legal limit. If you had just eaten a spicy meal and were experiencing heartburn when you took the test, you might give a very high false reading. Even a slight, unnoticeable regurgitation can result in mouth alcohol being blown on the test.

Mouth alcohol can come from sources other than belching or heartburn. Decaying food particles trapped between the teeth in dentures, braces, cavities or impactions will tend to form alcohol in the mouth. So would latent alcohol from having recently taken cough syrup, cold medicine, homeopathic preparations, mouthwash or used various breath fresheners.

Like alcohol burped up from acid reflux, latent alcohol in the mouth from these sources can also dramatically raise breath test levels.

People who work around chemicals can absorb these compounds and these may show up in lung tissue. Such things as nitrous oxide, acetonitrile, ethylene, toluene, isopropanol, if found inn the lung tissue of a DWI suspect, can give a falsely high reading on the breath test.
Recent exposure to any type of volatile fumes (gasoline, paint, lacquer, etc.) can falsely elevate test results.

When a person is eating a high protein, low carbohydrate diet, such as the Adkins Diet, the body produces compounds called ketones during metabolism. When a person then consumes carbohydrates, as in drinking alcohol, these ketone bodies in the blood can produce another form of alcohol, isopropyl alcohol. Most breath testing machines do not distinguish between the two even though it is only the ethanol that causes impairment. A falsely high test result can result.

If you are hypoglycemic, borderline diabetic or if you have diabetes, consumption of alcohol, even in small amounts, will cause your body to convert elevated levels of acetone into isopropyl alcohol.

When you consumed your alcohol, may have more consequences on your test reading than how much you consumed. The reason is because alcohol can take up to 3 hours to absorb fully into the bloodstream. In other words, your peak Blood Alcohol Level may come at the station house when taking the breath test and could be twice as high as your level when you were particularly if you consumed the alcohol shortly before you were stopped. Your Blood Alcohol Level may have been .07 when you were stopped but an hour later at the police station when the alcohol has been fully absorbed, the test reads .14. No law mandates a Blood Alcohol Level above .08 at a police station; it’s the level when you were driving that counts. This is another potential source of breath testing inaccuracy.

Across the general population, there is a conversion ration that breath machines use to convert a breath alcohol reading to a blood alcohol reading. The machine assigns this value at 2,100 to 1. Fundamental to breath testing, is the assumption that the subject being tested conforms to this ration. Scientists, however, have disclosed widely different ratios among individuals across the population. And, if a person’s breath-to-blood cvolnversion ratio is lower than 2,100 to 1, a breath test will reveal a blood alcohol level much higher than it actually is.

Variances in the duration and volume of the breath sample may result in a false high or false low reading. The machine is calibrated to receive a breath sample that lasts over 10 seconds in delivery time, which usually translate to the delivery of approximately 2 liters of air. A longer breath sample may yield a much higher amount of alcohol being registered. Conversely, a shallow breath hyperventilating ,may result in mouth alcohol being blown, again giving a false high reading.
Even breath temperature may affect results. The machines are calibrated to record breath blown at a temperature of 34 C., just a few degrees below normal body temperature. Even a slightly higher temperature can give a falsely higher reading. Such can occur from fever, sitting in the back of a hot squad car, exertion from dancing at a club, sitting in a hot tub and so on.

Due to various physical conditions such as chronic lung problems (emphysema, asthma, bronchitis or chronic obstructive pulmonary syndrome) or dental problems, many persons are not suitable candidates for breath alcohol testing, yet these same individuals are given breath alcohol tests day in and day out, with little regard for the physiological differences among individuals being tested by one, generic machine.

Radio waves generated by any number of electronic devises such as police radios, radar guns, scanners, computers, etc., can interfere with electronic circuitry in blood or breath testing machines. Radio Frequency Interference, or FRI as it is known, can influence a breath machine and render a false test reading. While the amount of inaccuracy is difficult to determine, it nevertheless adds yet one more degree of skepticism surrounding breath alcohol tests.

A test reading is only one factor in a DWI case. Sometimes the test reading is inconsistent with other evidence such as the field sobriety tests, officer reports of the suspects behavior, etc. As well, specific symptoms can be observed at different levels of intoxication and if tghe DWI suspects other indicators do not conform to what would be expected from the test results, this disconnect calls the entire case into question. That is, the expected level of impairment was not evident at the reported Blood Alcohol Level test results.

DWI Rights & DUI Questions

We listen closely to what led up to and resulted in your DWI arrest, asking pertinent questions to reveal details to strategize a tactical defense plan. We become totally familiar with your case, and allocate plenty of time to address your concerns.

Immediately we go to work to save your driver's license, and investigate your case beginning with the police report and evidence. We examine every event and surrounding detail involved, including the use of breath testing equipment, maintenance records, calibration, observation periods, certification of operators and blood testing technicians, and more.

Once we have obtained a copy of the police report pertaining to your arrest and DWI offense(s), we examine every aspect to uncover inconsistencies, inadherence to policies and procedures, contradictions, and other information that we can put to the test at your any DMV Hearing in preparation for your criminal court case. The DMV Hearing can be very instrumental in serving as a "mock trial", in some cases, where we can test the strength of the charges against you, and the likelihood they will stand up to the measure of "beyond a reasonable doubt".

We will examine the evidence against you, and if you submitted to a blood test, we will request a sample to send to our independent laboratory for an expert second opinion. We employ toxicologists, criminalists, private investigators, independent laboratories, alcohol dependency mediators, and other experts (as needed) to exhaustively support your defense case. If the results of the independent lab test differ from law enforcement's claims, we will obtain documentation such as affidavits from our lab sources, and if your case proceeds to a Jury Trial, we employ the full force of our contacts and resources to provide essential support and testimony on your behalf.

We will visit the scene of your arrest, the landscape and conditions where you subjected to field sobriety tests, if applicable. We will match the area against the police report, and again thoroughly weigh all contributing and external factors such as the weather and traffic patterns at the time of your arrest.

We will make a list of all witnesses, law enforcement personnel, and test technicians to ensure each person's statement or account of the incident is corroborative. We will cross-examine all involved parties if your case proceeds to a Trial.

We will request maintenance, calibration, & certification records on all breath testing equipment and personnel, reviewing the administration of tests for inadherence to procedure or other disqualifying causes.

We will give you all the information you need to prepare for your first court hearing. In some instances, we can successfully file a pre-trial motion at this hearing, in some cases resulting in an an entire dismissal of the charges against you. If your case does not proceed to trial, the prosecutor may offer to have your DWI charges reduced to a traffic infraction.

What is DWI?

Driving While Intoxicated (DWI) is a crime. In NYS, the penalties include the loss of driving privileges, fines, and a possible jail term.

Your judgment, coordination and ability to drive a vehicle change when you consume any amount of alcohol. The level of impairment depends on five conditions:

  1. the amount of alcohol you drink,
  2. the amount of food you eat before or while you drink alcohol,
  3. the length of time you drink alcohol,
  4. your body weight, and
  5. your gender.

    There is no quick method to become sober. The best method is to wait until your body absorbs the alcohol. The average rate that your body processes
    alcohol is approximately one drink per hour.

      What are the alcohol and drug-related violations in New York State?

           BAC = blood alcohol concentration

    • DWI:  Driving While Intoxicated; .08 BAC or higher or other evidence of intoxication. For drivers of commercial motor vehicles, .04 BAC or other evidence of intoxication.
    • Aggravated DWI: Aggravated Driving While Intoxicated: .18 BAC or higher.
    • DWAI/Alcohol:  Driving While Ability Impaired (by alcohol); more than .05 BAC to .07 BAC, or other evidence of impairment. For drivers of commercial motor vehicles who are under age 21, .02 BAC or other evidence of impairment.
    • DWAI/Drug:  Driving While Ability Impaired by a single Drug other than alcohol.
    • DWAI/Combination:  Driving While Ability Impaired by a Combined Influence of Drugs or Alcohol.
    • Chemical Test Refusal:  A driver who refuses to take a chemical test (normally a test of breath, blood or urine) can receive a driver license revocation of at least one year (18 months for a commercial driver) and must pay a $500 civil penalty ($550 for a driver of commercial vehicles) to apply for a new driver license. A driver who refuses a chemical test during the five years after a DWI-related charge or previous refusal will have their driver license revoked for at least 18 months (permanent for a commercial driver) and must pay a $750 civil penalty to apply for a new driver license. If the driver is under age 21, and refuses a chemical test during the five years after a DWI-related charge or previous refusal, they will have their driver license revoked for at least one year or until age 21, whichever is longer and must pay a $750 civil penalty to apply for a new driver license.
    • Zero Tolerance Law: A driver who is less than 21 years of age and who drives with a .02 BAC to .07 BAC violates the Zero Tolerance Law.

    What are the penalties for Alcohol-related or Drug-related Violations?

    Penalties for Alcohol-related and Drug-related Violations
    Violation (1) Mandatory Fine (2) Maximum
    Jail Term
    Mandatory Driver License Action (3)
    Aggravated Driving While Intoxicated (A-DWI) $1,000 - $2,500 1 year Revoked for at least one year
    Second A-DWI in 10 years (E felony)(1) $1,000 - $5,000 4 years Revoked for at least 18-months (5)
    Third A-DWI in 10 years (D felony)(1) $2,000 - $10,000 7 years Revoked for at least 18-months (4,5)
    Driving While Intoxicated (DWI) or Driving While Impaired by a Drug (DWAI-Drug) $500 - $1,000 1 year DWI-Revoked for at least six months
    DWAI-Drugs - Suspended for at least six months
    Second DWI/DWAI-Drug violation in 10 years (E felony)(1) $1,000 - $5,000 4 years Revoked for at least one year
    Third DWI/DWAI-Drug violation in 10 years (D felony)(1) $2,000 - $10,000 7 years Revoked for at least one year (4)
    Driving While Ability Impaired by a Combination of Alcohol/Drugs (DWAI-Combination) $500 - $1,000 1 year Revoked for at least six months
    Second DWAI/Combination in 10 years (E felony)(1) $1,000 - $5,000 4 years Revoked for at least one year/18 months (5)
    Third DWAI/Combination in 10 years (D felony)(1) $2,000 - $10,000 7 years Revoked for at least one year/18 months (4,5)
    Driving While Ability Impaired by Alcohol (DWAI) $300 - $500 15 days Suspended for 90 days
    Second DWAI violation in 5 years $500 - $750 30 days Revoked for at least six months
    Zero Tolerance Law $125 civil penalty and $100 fee to terminate suspension None Suspended for six months
    Second Zero Tolerance Law $125 civil penalty and $100 re-application fee None Revoked for one year or until age 21
    Chemical Test Refusal $500 civil penalty ($550 for commercial drivers) None Revoked for at least one year, 18 months for commercial drivers.
    Chemical Test Refusal within five years of a previous DWI-related charge/Chemical Test Refusal $750 civil penalty None Revoked for at least 18 months, one-year or until age 21 for drivers under age 21, permanent CDL revocation for commercial drivers.
    Chemical Test Refusal - 
    Zero Tolerance Law
    $300 civil penalty and $50 re-application fee None Revoked for at least one year.
    Chemical Test Refusal - 
    Second or subsequent Zero Tolerance Law
    $750 civil penalty and $50 re-application fee None Revoked for at least one year.
    Driving Under the Influence - (Out-of-State) N/A N/A Revoked for at least 90 days. If less than 21 years of age, revoked at least one year.
    Driving Under the Influence - (Out-of State) with any previous alcohol-drug violation N/A N/A Revoked for at least 90 days (longer term with certain prior offenses). If less than 21 years of age, revoked at least one year or until age 21 (longest term).
    1. Greater penalties can also apply for multiple alcohol or drug violations within a 10-year period.
    2. Surcharges are added to misdemeanors ($160) and felonies ($270).
    3. The driver license penalties for drivers under the age of 21, and for drivers of commercial motor vehicles and other professional drivers, are different.
    4. Three or more alcohol or drug-related convictions or refusals within 10 years can result in permanent revocation, with a waiver request permitted after at least 5 years.
    5. A driver with an Aggravated DWI violation conviction within the prior 10 years will receive a minimum 18-month revocation if convicted of DWI, DWAI/Drugs or DWAI/Combination. Also a driver with a prior DWI, Aggravated DWI, DWAI/Drugs or DWAI/Combination with the prior 10 years will receive a minimum 18-month revocation.

    Can I get a conditional license if I was convicted of DWI or DWAI?

    If you receive your first conviction for DWI or DWAI and you participate in the Drinking Driver Program (DDP), you can receive a conditional license. The DMV determines if you are eligible for the DDP. A judge can stop your enrollment in the DDP. To get complete information read the DMV brochure, 
    he Drinking Driver Program
     (PDF document).

    The law mandates participation in the DDP, even if the driver is not eligible for a conditional license, for convictions of specific alcohol or drug-related violations,
    or in specific plea-bargaining situations.

    See the DMV brochure, You and the Drinking Driving Laws, for more information about DWI (PDF document).

    See a complete list of NYS approved DDP programs available in PDF format.

    What is the Driver Responsibility Program? What is a driver responsibility assessment?

    To get information about driver responsibility assessments and the Driver Responsibility Program, read the FAQs.

    What is "Leandra's Law"?

    Leandra's Law was signed into law on November 18, 2009 in honor of Leandra Rosado. Leandra was an 11-year old killed while she rode in a vehicle with the intoxicated mother of one of her friends. In response to this tragedy, the NYS Legislature made several changes to the Vehicle and Traffic Law (VTL). The law strengthened the penalties against motorists who drink and drive, and requires that:

    • A person sentenced for Driving While Intoxicated on or after August 15, 2010 have an ignition interlock device installed on any vehicle they own or operate, and
    • the driver have an "ignition interlock" restriction added to their driver license.

    See additional information about Leandra's Law at the NYS Governor's Traffic Safety Committee Alcohol, Drugs and DWI page.

    What are the different parts of Leandra's Law and what are the penalties for conviction?

    Leandra's Law includes the following provisions:

    "Aggravated DWI/Child in Vehicle."  The law establishes this new Class E Felony. The law states that no person shall operate a motor vehicle under the influence of alcohol or drugs while a child who is 15 years of age or younger is a passenger in the vehicle.

    Ignition Interlock Requirement.  A court must sentence a person convicted of either Aggravated DWI/Child in Vehicle or Aggravated DWI/Driving with a Blood Alcohol Content (BAC) of .18 or More to a period of probation or to a conditional discharge. The court must require the installation and use of an ignition interlock device in any motor vehicle owned or operated by a person convicted under this law. The ignition interlock device must remain in the vehicle for at least six months.

    Driving While Intoxicated.  A court that sentences a person for a Driving While Intoxicated conviction on or after August 15, 2010 must impose a conditional discharge or probation. A condition of the sentence must be the installation and use of an ignition interlock device in any motor vehicle the person owns or operates. The ignition interlock device must remain in the vehicle for at least six months.

    What is an "Ignition Interlock Device"?

    An ignition interlock device connects to a motor vehicle ignition system and measures the alcohol content in the breath of the operator. The device prevents the vehicle from being started until the motorist provides an acceptable breath sample.

    If ignition interlock is ordered by a court, the system must be installed on each vehicle the motorist owns or operates. The device must remain installed for at least six months. The ignition interlock restriction will be added to the driver license record even if the license is revoked. The restriction will appear on the back of the driver license document as "interlock device".

    Courts and probation departments will direct convicted motorists to vendors for ignition interlock installation. The Web site of the Office of Probation and Correctional Alternatives external link provides details on ignition interlock device vendors and information from the manufacturers of the device.


    disclaimer: The information on this web site is not, nor is it intended to be, legal advice. You should contact an attorney for advice on your individual situation. 

    Contacting the Law Firm of Stewart Orden does not create an attorney-client relationship.

    Copyright Stewart Orden 2012