New York has taken steps over the years to crack down on drunk driving. Harsh penalties are a means of deterring potential offenders. Unfortunately, innocent people also get caught up in drunk driving suppression efforts. Whether it’s getting home late when you have a babysitter because of a road block or facing unfounded criminal charges, citizens can and do feel negative impact from enforcement efforts. If you get stopped, either individually or as part of a roadblock, you may feel tempted to refuse the test. Doing so, however, could prove to be a serious mistake.
If you had issues with a field sobriety test or appear to be impaired, a law enforcement officer could ask you to submit to a breath test to check for the presence of alcohol. There could be a number of reasons why you may want to refuse this test. You could have taken a medicine with alcohol in it or be in need of insulin, which could result in a false positive. You could find the practice invasive. You could just be in a rush and want to get home. Regardless of the reason, your refusal is actually a crime under New York law. You have to take a breath test if law enforcement asks you to do so.
Implied consent means you have to take the test
New York state law is very clear about breath tests. Anyone who drives on public roads gives implied consent to roadside sobriety testing and chemical breath testing. If you want to drive, you have to agree to submit to testing when requested to by law enforcement. The act of refusing a test is in itself a crime. Your license can get suspended when you are arraigned in court. If the courts determine that you did, in fact, refuse the test, the courts will then revoke your license for a full year and assess a fine of $500.
If you refuse a chemical breath test within five years of a driving while impaired (DWI) or breath test refusal, you’ll get fined $750 and lose your license for at least 18 months. Even if you aren’t convicted of a DWI or other impaired driving offense, you will still lose your license. Although you want to avoid the consequences of a DWI, refusing a roadside test isn’t the answer.
Simply refusing the test doesn’t mean that the courts can’t convict you, either. Even without a chemical test to show your blood alcohol content, video from law enforcement cameras and testimony from the arresting officer may prove sufficient evidence. Law enforcement can bring up your refusal to take the breath test during court for your DWI charge as well. Refusing a breath test won’t protect you from legal trouble, but it can certainly cause a lot of other issues.
If you’ve been arrested for DWI in New York, don’t assume that your only option is to plead guilty and hope for the best. Even if you think you might be guilty, there may be possible defenses available, as well as ways to minimize the damage of a conviction. We recommend contacting an attorney for an assessment of your case.
If you are convicted of DWI, you could be facing a number of serious consequences. For example, for a person over 21, a typical, first-offense DWI at 0.08 percent blood alcohol content could get you up to a year in jail and a fine of between $500 and $1,000. That fine doesn’t include the mandatory crime victims’ assistance fee, conviction surcharge, or driver responsibility assessments — or the increase in your insurance rates. In addition, your driver’s license will be revoked for up to six months. The court may require you to install and maintain, at your own expense, an ignition interlock device.
Unfortunately, New York state law does not allow you to plea bargain an alcohol-related charge to a non-alcohol-related violation. That does not mean, however, that there is nothing to be done to improve your situation.
Here in Buffalo, you’re probably still going to need to drive to work or school. New York allows people convicted of DWI and other alcohol- and drug-related driving offenses to enter the Impaired Driver Program, or IDP. Successful participation in the IDP or an equivalent out-of-state program allows you to apply for a conditional license/privilege that will allow you to drive for work or school during your revocation period.
If you’re under 21 or have a commercial driver’s license, the legal blood alcohol content is much lower. Plus, New York’s Zero Tolerance Law for drivers under 21 could affect your penalty. All of the penalties could be higher — including your driver’s license suspension — if you are convicted more than once, if there were aggravating factors, or if your alcohol impairment results in a serious accident. And, there may be additional consequences, depending on your specific circumstances.
A first-time DWI may be a misdemeanor, but it can totally change your life. You have the right to defense counsel, and we recommend you exercise that right.
Police in most states, including New York, use sobriety checkpoints to discourage drunk driving. Police at checkpoints randomly stop drivers and look for signs of impaired driving. The checkpoints typically are used around holidays on routes that have a higher-than-normal rate of DWI arrests or DWI-related crashes.
Many people question the constitutionality of sobriety checkpoints, but the U.S. Supreme Court decided in 1990 that sobriety checkpoints are legal.
The court said reducing the number of drunken drivers outweighs law enforcement’s intrusion into people’s lives. Chief Justice William Rehnquist wrote in the court’s 1990 decision that checkpoints are “consistent with the Fourth Amendment.”
Today 38 states allow sobriety checkpoints.
How are sobriety checkpoint locations chosen?
Law enforcement agencies are not allowed to do anything they want at checkpoints. In response to legal decisions, the National Highway Traffic Safety Administration has provided guidance to law enforcement agencies regarding the use of checkpoints. The NHTSA says the duration and location of checkpoints must be reasonable. Its advice on locations says:
- The safety of the public should be the top consideration when selecting checkpoint locations.
- The location should be in an area where there have been a high number of drunk-driving-related crashes.
- The location should present the least amount of inconvenience possible to the public. Before setting up a checkpoint, law enforcement should measure what the effect will be on traffic.
- The location should have enough room on the shoulder for detaining motorists.
- Multiple stretches of road should be considered when selecting a location.
Plus, the NHTSA advises authorities to publicize the checkpoints in advance. If checkpoints fail to meet the legal standard for duration, location and publicity, the arrests can be challenged in court and dismissed.
Erie County sobriety checkpoint locations
Sobriety checkpoints are common in the Buffalo area, and it is not unusual for law enforcement to arrest up to a dozen people at a specific checkpoint. A 2016 checkpoint in Cheektowaga, for example, yielded five arrests — four for marijuana possession and one for DWI, according to media reports.
Below are the locations and dates for sobriety checkpoints in Erie County for the past 12 months, according to duiblock.com.
- Buffalo, September 3, 2017: West Seneca Street and Franklin Street
- Buffalo, August 25, 2017: South Park Avenue Area of Buffalo River Bridge
- Buffalo, July 11, 2017: Amherst Street and Elmwood Avenue
- Tonawanda, June 17, 2017: Bottom of the First Grand Island South Bridge
- Buffalo, February 24, 2017: Millersport Highway
- Buffalo, February 17, 2017: Transit Road and Interstate 90
- Depew, December 31, 2016: Transit Road and Genesee Street
- Buffalo, November 23, 2016: Harlem Road and Genesee Street
- Athol Springs, November 23, 2016: Lakeshore Road, near LaSalle Avenue
- Buffalo, November 4, 2016: Main Street and Niagara Falls Boulevard
- Elma, October 29, 2016: Transit Road and Southwestern Boulevard
- Buffalo, October 29, 2016: Main Street and Kensington Avenue
- Buffalo, October 15, 2016: Transit Road and Interstate 90
If you have questions about sobriety checkpoints or DWI, contact a knowledgeable DWI attorney.
A New York DWI can be costly. Besides the potential jail time and driver’s license suspension, a conviction means a substantial fine, even for a first offense. Next, tack on the mandatory surcharge and crime victims’ assistance fee. You could also be required to install and maintain an ignition interlock device — at your own cost. When you’ve completed your punishment, you have to pay to get your license reinstated.
Those are just the direct costs of a DWI conviction. That doesn’t count the increase in your insurance premiums. The average increase in your insurance rate is $4,000 over a five-year period. With all that on the line, can you afford to hire a defense lawyer?
You can’t afford not to. It turns out, as we expected, that the cost of hiring a quality defense attorney is well worth it. In fact, it may pay for itself by limiting the increase in your insurance rate.
The folks at the insurance cost comparison website QuoteWizard tested the theory. They considered data on insurance rates, examined conviction statistics and talked with defense attorneys and concluded that hiring a lawyer saves the average defendant enough in insurance increases to pay for the cost of that lawyer. Plus, a large majority of people with attorneys get better outcomes.
Here’s what QuoteWizard found:
- People convicted of DWI pay, on average, $830 more annually for auto insurance than people with clean driving records.
- A DWI conviction raises your insurance rates much more than a negligent or reckless driving charge. A DWI increases those rates by an average of $1,460 more over a three-year period than the lesser charges.
- People who hire private defense lawyers are three times more likely to have their DWI charge reduced than those who do not.
If you get pulled over for drunken driving, panicking won’t help. Now you know one thing that does help — hiring a lawyer.
Since at least 2013, the city of Buffalo has been running crime control roadblocks on a near-daily basis. These roadblocks require every passing motorist, or a randomly selected group, to stop and be inspected for criminal activity. That activity ranges from having improperly tinted windows to driving while impaired.
The roadblocks are a major hassle for motorists, especially those who are ticketed. According to TheNewspaper.com, between 2013 and 2015 the number of traffic tickets issued rose by 62 percent. The number of driver’s license suspensions jumped by 58 percent — and that may be because the drivers could not afford the towing and ticket fees.
Are the roadblocks working to reduce crime? Maybe not, according to researchers from the State University of Buffalo Law School. They found that “Operation Strikeforce” mostly resulted in tickets for non-safety items such as tinted window citations, which tripled. During the same period, arrests for serious moving violations and DWI dropped off, and it’s hard to say how that was related to the roadblocks.
What we do know is that, during the first two months of the program, the Buffalo Police Department conducted 67 roadblocks. Of those, 96 percent were located in communities of color on the East Side. The city denies a racial motive for the location of the roadblocks.
“These checkpoints are directly harming Buffalo’s low-income communities of color,” said the Western New York Law Center, a civil rights group. “How many people have lost their licenses because they couldn’t afford to pay the tickets issued at these checkpoints?”
The Western New York Law Center and the National Center for Law and Economic Justice are suing the city over the roadblocks. They claim that the city and the Buffalo PD have refused to turn over requested documents regarding the location and operation of the roadblocks.
“For too long, the Buffalo Police Department has been shielding its checkpoints program from public scrutiny,” said a spokesperson for the National Center for Law and Economic Justice. “The Buffalo Police Department must search its records and provide responsive documents as soon as possible.”
The lawsuit is not meant to address any specific ticket or license suspension. It is mainly meant to shed light on the decision-making process for locating the roadblocks almost exclusively in minority neighborhoods.
If you have been arrested for DWI or ticketed at one of these roadblocks, however, the fact that the roadblocks are focused on communities of color could impact your case. We strongly recommend discussing the issue with a lawyer.
One of the most useful pieces of technology in the fight against drunken driving is the interlock ignition device. The technology is fairly new, but you have probably heard of them: These devices are breathalyzers that are installed in the automobiles of people who have been arrested for driving under the influence of alcohol. If the driver fails the breathalyzer, the device temporarily locks the car’s ignition. This has lowered the rate of recidivism for drunk drivers and has no doubt saved lives. So why aren’t there more of these devices on motorcycles?
Motorcyclists are also capable of riding under the influence of drugs or alcohol, yet there are far fewer interlock ignition devices, or IIDs, installed in motorcycles than cars. A recent study from the National Highway Traffic Safety Administration examined the ignition interlocks for motorcycles. As it turns out, there are several mitigating factors that make using IIDs more complicated for motorcycles.
Currently, there are only two manufacturers in the United States whose IIDs can be used on motorcycles; this is obviously a hurdle for availability. The design of motorcycles also poses a challenge: the devices are more susceptible to theft and damage from the weather when they are not protected by the body of a car. Further, motorcycles’ engines provide too much vibration for the devices. There are also liability concerns that deter many manufacturers from producing the devices. Ultimately, the widespread use of interlock ignition devices is feasible in the near future, once these challenges have been addressed.
People of color have long suspected they were under increased scrutiny by police, and a recent Stanford University study confirms that black and Latino drivers are searched during traffic stops at a higher rate than whites. This was true despite the fact that Latinos are statistically less likely than whites to be pulled over in the first place.
Researchers with Stanford University’s Open Policing Project reviewed records on more than 64 million traffic stops performed in 20 U.S. states between 2011 and 2015. They had collected records on about 50,000 traffic stops performed each day and entering them into a database. Some states provided more information than others. Their goal was to determine whether any statistically significant evidence of racial bias could be found.
First, they noted that African-Americans are stopped more often than whites, and that whites are stopped more often than Latinos. This is not good evidence of bias, however, because the disparities could be explained by neutral factors such as driving behavior.
Eve taking into account the location, date and time of the stop, the drivers’ ages and their genders, however, the researchers found that the minority drivers were searched far more often. “We find that black and Hispanic drivers have approximately twice the odds of being searched relative to white drivers,” the researchers said in their paper.
Could the higher rate of searches be explained by the black and Latino drivers being more likely to have contraband? The researchers considered this by comparing the search rate with the “hit rate,” or how often drivers were actually found to be carrying drugs or other illegal materials. The hit rates for African-Americans and whites were equal, and the hit rate for Latinos was actually six points lower than either.
In other words, the researchers were able to show statistically that officers search African-Americans and Latinos more often than whites, even though whites are equally likely as African-Americans and more likely than Latinos to have contraband. This evidence was found statistically significant.
The researchers were careful to say that, while they do have statistical evidence of bias in police officers’ inclination to search minority motorists over whites, the conclusions that can be drawn are limited. For example, there is insufficient evidence of whether search policies differ between jurisdictions.
As a final note, the researchers found that legalization of marijuana in Colorado and Washington had resulted in far fewer searches of motorists being performed in general.
Attorney General Jeff Sessions appears to be calling for an overall crackdown on drug use in the United States, viewing it as the best way to reduce deaths from opioid overdoses. Speaking before the annual meeting of the National Alliance for Drug Endangered Children, Sessions said that 2016 saw the highest number of drug overdose deaths so far.
Citing preliminary data for 2016, Sessions said there were nearly 60,000 overdose deaths last year. He called the epidemic “the top lethal issue” in the U.S.
“Our current drug epidemic is indeed the deadliest in American history. We’ve seen nothing like it,” he told the group, according to the Associated Press.
The Justice Department has announced new efforts to crack down on drug use in recent months. In May, Sessions reversed a reform put in place by the Obama administration which limited mandatory minimum sentences for nonviolent offenders charged with marijuana possession. Sessions ordered federal prosecutors to charge drug users — even low-level marijuana users — with the harshest possible crime they can prove.
In July, Sessions said he had asked the federal Task Force on Crime Reduction and Public Safety to “undertake a review of existing policies in the areas of charging, sentencing, and marijuana.” Along with his move in May, this led reform advocates to conclude that a marijuana crackdown is likely on the way.
In August, he announced he would send 12 federal prosecutors to various cities hard-hit by the opioid epidemic. These prosecutors, part of DOJ efforts to cut down on opioid abuse, will be focusing on investigating opioid scams and healthcare fraud.
“We must not capitulate, intellectually or morally, to drug use. We must create and foster a culture that’s hostile to drug use,” Sessions said at the Tuesday meeting.
Worryingly for legalization states, Sessions also accused the media, Hollywood and unnamed public officials of “sending mixed messages about the harmfulness of drugs.”
Sessions may have been referring to cannabis. The attorney general is widely known to oppose marijuana and sought to end a federal moratorium on DOJ interference with medical marijuana regulation. That moratorium was re-upped in June.
If you look under a tarp for what appears to be a motorcycle, have you searched the motorcycle? Or have you searched the tarp?
That question may be central to the appeal of a warrantless search meant to find a motorcycle that had been stolen years earlier from New York. Police in Virginia apparently spent a great deal of time and energy chasing down that motorcycle and its rider.
The case began during a routine patrol in 2013. A police officer tried to pull over an orange-and-black Suzuki motorcycle, but the rider sped away. About six weeks later, another officer noticed what appeared to be the same motorcycle traveling at 100 mph in a 55 mph zone — and then speeding up to 140 mph in order to evade the officer.
That second officer got the license plate number, which led the investigation to the last person who had registered the cycle. That man admitted having sold the motorcycle to the defendant after warning him that it was stolen.
A couple of months later, the defendant was attempting to register an Acura at the DMV when he aroused suspicion. The suspicion turned out to be unfounded, but the police arrived and accused him of being the elusive motorcyclist. He denied knowing anything about the bike, but officers found a photo of it on the defendant’s Facebook page — right next to the Acura he had been trying to register.
This photo and help from an informant led the police to the defendant’s home. There, an officer noticed what appeared to be a motorcycle in the driveway, covered by a tarp.
At this point, there was no concrete indication that the bike was the orange-and-black Suzuki in question — until the officer lifted the tarp and checked the bike’s appearance and VIN.
The defendant was convicted of receiving stolen property and sentenced to three years in prison. He appealed that conviction to the Virginia Court of Appeals, claiming that the police should not have lifted the tarp on the man’s property without first obtaining a search warrant.
Search warrants are generally required unless there is a legal exception. In this case, the appellate court ruled that the so-called “automobile exception” applied, meaning that no search warrant was required. Instead, what was required was probable cause to believe the stolen motorcycle would be found there. The automobile exception essentially allows any motor vehicle to be searched without a warrant as long as there is probable cause.
One judge dissented, claiming that it was not the motor vehicle that was searched but rather the tarp — so the automobile exception does not apply. Yesterday, the U.S. Supreme Court agreed to hear the appeal.