Law Offices of Steven A. Hoffner



Driving While Intoxicated: A Guide to Keeping Your Driving Privileges

If you or a loved one has been arrested in New York for driving under the influence of alcohol or drugs, there are certain things you need to know. The following is a basic summary of the manner in which Driving While Intoxicated cases (VTL 1192) are treated in New York City, Nassau County or Westchester.

 Granted, each jurisdiction has its own particular policies and practices, but there are some general principles of law that govern in all cases of alleged Driving While Intoxicated.


The Breathalyzer Test

When a driver is pulled over and the officer suspects the driver is intoxicated, he can ask the driver to submit to a breathalyzer test. This device measures the percentage of alcohol in a person’s blood. The legal limit in New York and most states is.08 % alcohol. Therefore, if the driver blows .08 or higher, then under New York law he can be charged with the Class A  misdemeanor of  Driving While Intoxicated whether or not his ability to drive was affected by the alcohol.

 A refusal to take the breathalyzer, assuming preceded by the appropriate warnings, results in the immediate suspension of an individual’s driving privileges in new York for one year, regardless of whether the person is ultimately convicted of driving while intoxicated.

 The only way for a driver to get his license back sooner is if the officer fails to show up for the “Refusal Hearing”, which must be held within 10 days of the arrest, or if at the hearing the hearing officer is not convinced that the driver legally refused the test.

 Drunk Driving Charges: The Criminal Process

Even if a driver blows greater than .08, a good lawyer can still effectively fight the charges.  If the stop was unlawful, then the breathalyzer results can get suppressed and a dismissal of the charges can result. Also, an argument can be made that the breathalyzer was not calibrated properly and therefore the results are not trustworthy.

 Driving While Intoxicated: Common Law

If a driver blows under.08, then she can still be charged with the misdemeanor Driving While Intoxicated under an alternative theory; that being the allegation that the driver was substantially impaired in his ability to drive the vehicle.

 Also, a person who blows between .04, but less than .08, can still be convicted of a violation of Driving While Impaired, which does not require proof of substantial impairment, but only requires proof of some impairment by alcohol.


The Consequences of Drunk Driving

Convictions for a misdemeanor drunk driving usually involves a minimum six months revocation of one’s driving privileges, a monetary fine and a drunk driving program. The violation of driving while impaired involves similar conditions, but only a 90 day suspension of driving privileges.

 When appropriate, a skilled attorney should take the case to trial and force the prosecution to prove its case. In other instances, it is the attorney’s job to negotiate a good plea bargain. Either way, it pays to have a good lawyer by your side.


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