Vehicle and Traffic Law §1227(1) prohibits the consumption or possession of an open container containing an alcoholic beverage in a motor vehicle located on a public highway. It applies to drivers and passengers. You must be on a public highway as defined in the Vehicle and Traffic Law. For example, if there is an open container in a vehicle sitting in a private residential driveway, it is not a violation.
If you're in violation of the statute, there is usually a fine. The charge can be difficult to prove because police must prove the container actually contained alcohol. Further, transporting closed containers, or empty containers, is not a violation.
An open container alone will not lead to a DWI, but it can and usually will lead to further investigation. At a minimum, it will lead to questions, and it can lead to a full-blown DWI investigation, If arrested for DWI, the open container will be used against you.
For example, if you go to a store and buy beer, you decide to bring the open beer home with you. An officer pulls you over for something minor, like a tail light being out. The officer notices the can or bottle, and will ask further questions and possibly perform tests. The open container provides cause to investigate further.
Remember, open container laws apply even if you're not driving. If you park on the side of the road, and drink, you could receive a DWI on top of the open container violation.
There are a number of defenses for open container violations. Which ones may apply to you will depend on your particular situation. Even without an accompanying DWI, an open container violation will cost you money and time.
It's best to speak to an attorney familiar with how traffic and DWI laws work in Rochester, NY. If you receive a citation for an open container or a DWI, contact our offices immediately for a consultation.
Driving under the influence of drugs or alcohol is not only dangerous to you and your vehicle, it is also dangerous to others on the road with you.
Even if you are otherwise capable of operating your vehicle safely, you still may be stopped by police for minor traffic violations, or required to stop at a sobriety checkpoint.
While surprising to learn, 38 states conduct sobriety checkpoints on a regular basis in an attempt to promote highway safety. Sobriety checkpoints however, since they are suspicionless stops, are subject to special rules to avoid arbitrary police intrusions.
Before you are stopped by police, you should be aware of your rights. Here, you will learn a few important things if you are stopped by police.
You might never dream of drinking too much or taking illegal street drugs and driving, but did you know that you can be arrested for driving while impaired by drugs even if the drugs you've taken were prescribed by a doctor or legally purchased over the counter?
In New York, a DWI charge usually means that your Blood Alcohol Content (BAC) is over 0.08. You can still be charged with Driving While Ability Impaired by alcohol if your BAC is lower than that, which is only a traffic infraction. However, you can be charged with Driving While Ability Impaired by Drugs if you are under the influence of drugs, including prescription medication. This charge is the same level charge as a DWI and carries similar punishments. Take a look at what you need to know about legal medications and driving.
Having a DWI conviction can change your life in many ways, but one of the most severe consequences you could suffer is losing your job. Here are two ways a DWI conviction can hurt your job or career prospects.
Loss of Professional Licenses
In some industries, a DWI conviction can cause you to lose a professional license. The best example is truck drivers who hold Commercial Driver's Licenses (CDL). Being convicted of Driving While Intoxicated will result in revocation of both your driver's license and your CDL, depending on the circumstances of your case. Commercial Drivers License holders, since 2006, are no longer eligible for Conditional Licenses of any kind. This means that if you are a truck driver, bus driver, etc., you are immediately out of a job. Commercial Drivers Licenses are suspended pending prosecution in DW I cases, and there is no opportunity for Hardship or Conditional Licenses. Moreover, most employers, due to insurance restrictions, will immediately terminate a truck driver charged with DWI. Truck drivers are required by federal regulations to report such arrests to their employer within 30 days.
In New York, your CDL will be revoked for one year if you refuse to have your blood alcohol level tested or if your BAC (Blood Alcohol Content) level is over 0.04 percent. It can be revoked for three years if you're transporting hazardous materials when you're arrested for DWI.
Airline pilots can also lose their licenses for DWI convictions. The Federal Aviation Administration (FAA) requires pilots to report DWI/DUI arrests to the agency within 60 days of the incident. Failure to do so can result in revocation of your medical certificate or suspension of your license. A disciplinary inquiry will be conducted with respect to any DWI arrest, no matter how it is disposed of.
You can also lose your pilot’s license if you have more than one conviction on your record, especially if they occur within a short span of time, because multiple DWI convictions signal a possible drug or alcohol problem. The FAA cannot take any chance you may fly while intoxicated.
Although any suspension or revocation may not be permanent, you can't work without your license is suspended or revoked. Even when you regain your license, your DWI convictions will show up on any background or license checks, which can make it difficult to secure future employment, primarily due to insurance restrictions. Working with an attorney to avoid being convicted is most important in this area.
Many other professionals can be subject to discipline for DWI convictions, including but not limited to health care professionals, teachers, and even security guards. Mr. Corletta has represented many such individuals in disciplinary proceedings.
A DWI conviction can also result in suspension or revocation of pistol permits, which are necessary to work in many security or law enforcement jobs. Mr. Corletta also has represented many clients in pistol permit revocation proceedings due to DWI. Your Second Amendment rights are not absolute, and can be taken away for driving drunk with a pistol permit.
Loss of Educational Opportunities
Another way a DWI conviction can affect you is that you may be denied entry into secondary schools or unable to obtain financial aid. Colleges and universities conduct background checks on prospective students, mainly in an effort to exclude people with certain criminal convictions. Depending on the school and the circumstances of your case, a DWI could cause you to be rejected from your college of choice.
For instance, if someone was killed in an alcohol-related accident you caused, the school may decline your application because your actions are against its student conduct policy or because the school doesn’t want to risk the behavior may occur again. Many schools deny certain types of scholarships or financial aid to people with drug or alcohol-related convictions.
The United States Department of Education will deny your financial aid application or suspend financial aid you may already be receiving if you are convicted of a drug charge, even possessing a small amount of marijuana, which often occurs in a drug or alcohol-related driving arrests. Additionally, scholarships or other financial assistance you receive from the school itself may be stopped.
It can be exceedingly difficult to get into the career you want or to rise up in a company if you're unable to get the education you need to hone your skills. Many employers also have policies against DWI.
Like with the loss of a professional license, the effect of the DWI on your education may be temporary, but it could have a long-term negative impact on your career. There are many other ways a DWI can impact your career or career opportunities. If you are concerned you may be disciplined in your job or school due to a DWI arrest, it is essential you contact an experienced DWI lawyer as soon as possible to protect your rights. Call Thomas A. Corletta at 585-546-5072 for a consultation.
Being charged with one DWI is serious enough. But if this is your second, third, or fourth DWI, the situation becomes more serious, because this is a predicate-type offense. Subsequent offenses, if committed within certain time frames, carry enhanced punishment.
New York State DMV regulations, enacted in 2012, make penalties for multiple DWIs even harsher. If you get a DWI, your punishment can be much greater if you've had other DWIs in the past five, ten, or now, even twenty-five years.
Here's what you need to know about getting multiple DWIs and how a lawyer can help you.
Countless breathalyzer tests (this is now a generic term; the original Breathalyzer was a device that used wet chemicals; most modern breath testing devices use infrared or electrochemical fuel cell technology) are administered on a daily basis across the United States. DWI is the only crime where a person can be convicted by machine. Unfortunately for some, breathalyzer tests are not always reliable indicators of intoxication or impairment.
There are several reasons why a breathalyzer test could be inaccurate and result in an unjust conviction. Many of these reasons are dependent solely upon factors beyond a person's control, including illness and unusual physiological or biological characteristics. Below are basic issues you should be aware of, if you are arrested for Driving While Intoxicated.
Diabetes or Other Illness
A common, chronic medical condition that can cause inaccurate breathalyzer readings is diabetes. Since diabetes affects approximately one in five American drivers, this is a particularly relevant concern for many individuals arrested for drunk driving.
One of the classic diabetic responses to blood sugar dysfunction is known as ketoacidosis. Whenever ketoacidosis occurs, the body produces excessive amounts of acetone, which is released into the respiratory system. Acetone is detected by infrared breath testing machines on the same wavelength as alcohol.
While acetone is not alcohol nor is it intoxicating, breathalyzers can detect and misinterpret this substance as alcohol. That means an individual who has been arrested for driving while intoxicated may have a false positive. However, most modern breath testing devices have acetone detectors which if functioning properly, will abort the test if acetone is detected. However, sometimes these detectors may not function properly. It is therefore usually wise not to administer a breath test to a diabetic, and instead perform a blood test.
Also, physical symptoms of diabetic attack are similar to those exhibited by someone who is intoxicated, such as slurred speech, delayed reaction times, and confused or disoriented behavior. This places a diabetic person in a very complicated situation if suspected of DWI . Obviously, diabetics should avoid drinking and driving at all costs.
Besides diabetes, other less-serious illnesses can generate false positives on a breathalyzer test. For example, heartburn, acid reflux, or GERD are also culprits in creating false positives on breathalyzer tests, as regurgitation of stomach contents may lead to high mouth alcohol. Breath testing devices are supposed to test deep lung (alveolar) air, and can be skewed by high mouth alcohol. However, most breath testing devices have mouth alcohol detectors which will abort the test if mouth alcohol is detected. The purpose of the 20 minute “observation period” prior to administration of the test is to make sure the subject doesn’t burp or regurgitate. How close the subject was watched can also be an issue as to the accuracy of the test.
Temporary Metabolic Changes
Besides diabetes, temporary, relatively minor changes in metabolism can artificially elevate blood alcohol levels. The consumption of products containing sugars and yeast can generate alcohol in a chemical process known as fermentation, even inside the mouth. Such products are common and include bread products and desserts.
In addition to what you eat, what you don't eat can also cause false positives for individuals taking breathalyzer tests. A process known as ketosis occurs whenever the human body metabolizes fat reserves for energy. As a byproduct of ketosis, isopropyl alcohol is created and can be mistaken by breath testing devices as ethyl alcohol.
Elevated Body Temperature
Breathalyzers are designed to test for the presence of chemicals in the methyl group, including ethyl alcohol, and their accuracy depends on the subject having a specific body temperature. An assumption is made that tested persons have the same body temperature as the human mouth temperature. Simulator solutions used as a control are heated to precisely 34 Degrees Centigrade, which is the human mouth temperature. However, as part of the testing procedure, the subject’s temperature is never tested.
Instead, healthy individuals can possess average temperature readings ranging from 97 degrees through 99 degrees Fahrenheit. If your average body temperature is higher than the universally accepted norm of 98.6 degrees Fahrenheit, this may skew your results.
In New Jersey, the State Supreme Court has recently recommended that a temperature detector be installed on breath testing devices in that state, in order to either adjust or invalidate chemical test results.
It is also important to understand that all chemical breath testing devices operate on the assumption, since they provide a Blood Alcohol Reading ( BAC ), that there is the same amount of alcohol found in 2100 cc of deep lung air as there is in 1 ml of whole blood. This is the chemical principle known as Henry’s Law. Chemical breath testing devices take a sample of deep lung air, and through a chemical conversion formula, convert the amount of alcohol found in the breath sample to a blood alcohol reading. Police officers will readily admit that a chemical breath test is an indirect test of blood alcohol content, by obtaining a sample of the subject’s breath .
It is well established that individual breath-blood ratios vary from person to person based upon age, sex, body chemistry, etc. There is no way to know the individual ratio of each person tested.
If you find yourself accused of driving while intoxicated, and you suspect that your physical health or body attributes may have influenced the test, then you should seek legal help from a qualified attorney . He or she can provide you with guidance and provide the tools you need to defend yourself on the charge.tworksp�ݑ�fB�
When you get your driver's license in New York, you give “implied consent” to a chemical test of breath, blood, urine, or saliva, if a police officer has reasonable cause to believe you are Driving While Intoxicated. If you refuse to submit after being warned in clear and unequivocal language that your license is subject to immediate suspension and subsequent revocation as prescribed by law, you can, after a hearing, lose your license for a minimum of 1 year; even if ultimately acquitted of the DWI charge.
It may be possible to avoid these consequences, if you have a valid defense to the refusal . Here are three valid defenses to a refusal.
A Medical Condition Hinders Your Ability to Give a Breath Sample
Not everyone has the lung capacity to properly blow into a breath testing device. These devices requires a certain volume of deep lung air for proper testing and are based on conversion ratios that depend on getting a sufficient sample. There are any number of medical conditions that can prevent a person from being able to provide the deep lung air needed to accurately measure blood alcohol levels. Breath testing devices operate on scientific principles that convert the amount of alcohol found in a specific amount of deep lung air into a blood alcohol reading.
For example, lung function often declines in patients with asthma . People with severe COPD typically only have about 30 percent lung capacity. Both of these conditions can make it extremely difficult for a person to blow into the machine long or hard enough to get a reading. Smokers may have emphysema, which is another condition that can hinder giving a breath sample.
To use this defense in court or at a DMV administrative hearing, you must produce evidence supporting your claim. This will usually require testimony from a medical professional; either a doctor or a nurse familiar with your condition. Doctor’s letters are hearsay, and are inadmissible in Court proceedings.
The Officer Didn't Follow the Rules
Police must follow a specific procedure when requesting people to take breath, blood, or urine tests. Most importantly, the officer must advise the person, in clear and unequivocal language, what will happen if they refuse. The Breath Test Operator ( BTO ) should give clear instructions on how to blow, and give the person adequate opportunity to comply and complete the test. Most machines are automated, and only require the operator to push a button to initiate the test. However, the sample will be rejected if sufficient.
Also, if the officer doesn't tell the person his or her license can be suspended and/or subsequently revoked and that the refusal can be used against them in Court, the defendant can argue he or she wasn't provided with adequate information to make an informed decision about taking a breath test.
The Officer Didn’t Allow You to Call Your Lawyer
Where some officers make their biggest mistake, is not in giving defendants access to counsel, if requested. In New York, the law is clear that if a motorist is under arrest for DWI and specifically requests to speak to an attorney before deciding whether to take a breath test, he/she must be offered access to counsel, through use of a phone and/or the phonebook, in order to seek legal advice, as long as the test is not unduly delayed. Restricting access to counsel by not allowing access to a phone, or by contacting a lawyer on the client's behalf instead of letting the client call themselves, or by denying access in any way, will usually lead to suppression of the refusal, and an inability by police to use the refusal against you. Always ask to call a lawyer in this situation. You are entitled to do so before making this important decision.
Defeating a charge for refusing to submit to a breathalyzer test can be challenging, but it is possible defend a refusal if you have a valid reason. You should never waive a DMV Refusal Hearing. Contact our office as soon as possible so we can review your case and suggest the best course of action to take to get the best possible outcome.
If you’ve been charged with a crime you believe you did not commit, don’t rely on your own judgement to resolve the issue. You may think you’re not guilty, or deserve consideration for a lesser charge, based upon your good record. You may think this is obvious, and the Court will agree once you have your day in court. You may even attempt to contact the Prosecutor to “make things right”, or explain yourself.
However, your actions (and lack of action) may actually damage your case if you do any of the above. Instead, hire a criminal defense attorney immediately and follow his or her advice. Not only will your attorney help you defend yourself, but it may also be possible for your attorney to have your charge dismissed. There are many avenues of defense; including technical problems with proof, mitigating circumstances, etc.
Here are three more important reasons to hire an attorney as soon as possible after being charged with a misdemeanor or felony.
Driving While Intoxicated or Impaired refers to operating a vehicle while your mental or physical ability is substantially affected by drugs or alcohol, or a combination of the two. Certain states have zero-tolerance laws, meaning if you drive with any amount of alcohol or drugs in your system, you may be charged with an alcohol or drug-related driving offense.
You know that driving under the influence is ill-advised and that a DWI charge can have serious consequences. But you may have trouble gauging at what point you become safe to drive after you've had a drink or two.
In this blog, we discuss New York's DWI laws, as well as the signs a blood alcohol content (BAC) may be over the legal limit and methods to sober up more effectively. Understanding this information can help you make informed, smart decisions about whether or not to get behind the wheel.
Legal BAC Limits
In New York State, you can be stopped and charged a DWI if your drinking impairs your ability to drive to a substantial extent. This is called “common law” DWI, and is based upon the officer’s observations of your driving and physical condition. However, you can also be charged with a " per se " DWI as a separate charge. A per se DWI occurs when you have a BAC at or above the legal limit. If you also display signs of impairment, this can be used against you to support the per se charge. Vice versa, the per se BAC can also be used to support the “common law” charge.
New York's BAC guidelines are as follows:
If you show a BAC of 0.18% or more, law enforcement may charge you with an aggravated DWI.
Common Sense Guidelines
So how much alcohol gets you to 0.08%? First, it's important to realize that it's unwise to skirt the legal BAC limit. While 0.08% is the legal standard, you may become impaired well before you reach that BAC for “common law” purposes.
Additionally, each person absorbs alcohol differently and alcohol affects people in different ways. While you can make an educated guess on your own BAC, you cannot know the percentile for sure. Moreover, if you are an “experienced drinker” you may not exhibit noticeable signs of impairment and still have a high BAC.
Your BAC depends on what you drink over what period of time, how much you drink, how long it's been since your last drink, and how much you weigh, your body chemistry, and what you have had to eat. This list is not exclusive. Moreover, if you take prescription medication or have other medical factors, you may show greater signs of impairment. Driving under the influence of prescription medication carries the same penalties as DWI.
If you notice any of the following, you may consider yourself too impaired to drive:
Even if you don't notice any of these signs, you should use some of the following tips before getting behind the wheel.
Tips to Sober Up
While there's no way to sober up immediately, you can expedite the process. As soon as you realize you need to sober up, stop drinking. Then, take the following action:
While none of these methods eliminates all alcohol in your system, these steps can help you be alert enough to evaluate your ability to drive more accurately.
Remember, if you feel at all doubtful about your ability to drive, find another way home. Call a cab or friend or family member when in doubt. It is cheaper than paying a lawyer, fines, and related fees.
If you have questions about how New York's DWI laws apply to you or you have been involved in a DWI incident, contact Thomas A. Corletta, Attorney and Counselor at Law for an expert perspective.