Pulled Over for DWI in New York?


          New York State’s Driving While Intoxicated (“DWI”) laws and associated penalties are some of the most stringent in the country and have grown even more severe in recent years.[1]  Therefore, it is absolutely critical to obtain the assistance of a qualitified attorney to help you through the overwhelming legal and financial consequences of any DWI charges that you might be facing.  The Law Office of Lorenzo Napolitano is experienced in handling every aspect of your DWI case.  Call (585) 325-4445 for a free consultation, or email Lorenzo@NapolitanoLaw.com.


            But when should you consult an attorney?  And what rights do you have during a police stop?  These are the two most important questions for anyone facing a possible DWI.  Knowing and exercising these rights effectively could make the difference between heading to jail on the one hand, and getting a dismissal or reduction of any DWI charges on the other, or even going home uncharged.


Getting Pulled Over:

            Police can pull a driver over for a number of reasons, including speeding, inability to stay inside the lines of a lane of traffic, failing to yield at stop signs, intersections, or stop lights, or for reckless driving.[2]

            Once pulled over, the police officer will often strike up a conversation immediately upon on any traffic stop to assess a driver’s ability to carry on a conversation and maintain eye contact.  In order to ascertain probable cause that the driver might be intoxicated, the officer will be looking for signs of slurred speech, the smell of alcohol on a driver’s breath, bloodshot eyes, or comments by a driver that he or she is coming from a party or a bar.

            While characteristics like slurred speech and bloodshot may be unavoidable, there are reasons other than intoxication for these characteristics, and such indicators alone are probably not enough to establish probable cause for a DWI arrest.  As such, an officer will always be looking for any statement(s) from the driver that they have consumed alcohol, as well as additional indicators.

Answering Questions:

            First and foremost, you do not have to answer ANY questions by the police officer without the opportunity to have a lawyer present.  However, the practicalities of any roadside stop probably require that you at least acknowledge the officer’s presence with a simple “Good evening officer/sir/ma’am,” and to supply the officer with your license and registration.

            You will obviously draw more suspicion to yourself if you are not respectful or if you immediately refuse to answer questions and demand an attorney.  As such, it is probably wise to answer any questions politely and with vague information rather than specifics.  You should not disclose any information about any alcohol you may have consumedNEVER tell police that you had “a couple beers” during the game, or that you are coming from a party or bar.  Such information will only lead them to pursue probable cause to further test for DWI, with field sobriety and/or chemical tests, and to make an arrest.

            Therefore, if you do happen to be coming from party or bar, then simply tell the officer that you are coming “from dinner” or a “friend’s house.”  If the officer inquires further, continue to be vague or politely decline to answer.  However, it is likely that the officer’s next question will be something to the effect of, “Did you have any drinks this evening?”  ALWAYS say “no”, or otherwise decline to answer.  You are not under any oath or legal obligation to admit anything to the officer, and you are further protected by both the New York State and Federal Constitutional privileges against self-incrimination.[3]

Field Sobriety Tests & Preliminary Breath Tests:

            If the officer does reasonably suspect that you are intoxicated, or if you made any admissions to consuming alcohol, then he will likely ask you to perform a series of tests known as Field Sobriety Tests or to take a Preliminary Breath Test (also known as a “PBT” or Alco-Sensor).

            You have the right to refuse these tests and probably should, even if you think you could pass them.  The field sobriety tests are highly subjective and can easily be used against you in court.  Since your refusal might frustrate the officer, try to be as polite as possible.  Police may even threaten you based on your refusal to submit to the tests.  Although it is best not to take the tests at all, if you are threatened, then respectfully tell them that you will perform the test only because of their threats, but that you do not consent to the tests.  Evidence of police threats or coercion can be used later in court to suppress the results of the tests.[4]

            Additionally, the results of the PBT or Alco-Sensor are inadmissible in New York State Courts at the trial phase, and there is only a fine if you are convicted of refusing to take it.  Since most PBTs only test for the presence of alcohol, and cannot detect a specific amount or degree of intoxication, it can only be used as more evidence of probable cause to arrest you.

            At this point, if you have denied consuming any alcohol, as well as refused all field sobriety and preliminary breath tests, then the officer will have to make a difficult decision.  He will either have to arrest you on whatever probable cause that he has (such as slurred speech, smell of alcohol, glassy/watery eyes, poor driving, etc.), or let you be on your way.  Most likely, the officer has already determined to arrest you, but was seeking for additional evidence of intoxication in order to build a stronger case in court.  On the other hand, if the officer believes your statements, and, based on his personal opinion and experience, determines that you are not intoxicated, then you may be free to leave.

            If you do happen to be taken under arrest, then the next step will be for the officer to advise you of your Miranda rights, transport you to the police station for processing, and, within two hours of the arrest, ask you if you will submit to an official chemical test of your blood-alcohol content (“BAC”).  Regardless of what you have done or said up to this point, you should now decline to answer any further questions without the counsel of an attorney.  Those magic words will cease any further interrogation by the police, as well as allow you to consult an attorney on whether or not you should consent to a chemical test.

Chemical (a.k.a. “Breathalyzer”) Test:

            In New York State, you have the “right” to refuse a chemical test; however, doing so will result in a temporary suspension of your driver’s license, and very likely its eventual revocation.[5], regardless of the outcome of your DWI charges.

            If you do refuse the chemical test, then you will be summoned to a DMV hearing within 15 days of your arraignment on the DWI charge.  At the hearing the arresting officer must prove: (1) reasonable grounds to suspect that you were driving while intoxicated; (2) that a lawful arrest was made; (3) that sufficient warning was given that refusal to submit to a chemical test would result in the immediate suspension of your driver’s license; and (4) that you, in fact, refused to submit to the chemical test.[6]

            In the majority of hearings, the officer will likely prove all four elements of refusal, resulting in the revocation of your license.  However, you should always attend the hearing and/or have an attorney conduct a defense.  In the best case scenario, your license might be saved at this critical juncture by winning the hearing, and at the very least, your attorney may have elicited key facts from the arresting officer which could prove valuable to winning your DWI case in court, or in obtaining a favorable plea bargain.


            There are no simple answers when facing a possible DWI arrest, or fighting the charges in court afterwards.  However, it is always best to be polite and respectful with law enforcement and to deny consuming alcohol, as well as refuse to take any field sobriety or preliminary breath tests.  If you are arrested anyway, or if the police give you a hard time for being uncooperative, then you should immediately ask for and try to contact an attorney.  Preserving all of your rights even before or during an arrest is the best possible course of action you can take.

          The reality of most DWI cases, however, is that individuals are not thinking clearly enough during a police stop to remember the information contained in this article.  Whether due to actual intoxication, the anxiety of being pulled over, or a desire to be candid with the police, most individuals will forget this information and make a bad situation even worse.

            Don’t let yourself make such a mistake.  But, if you do need legal assistance, the Law Office of Lorenzo Napolitano is here to help.  Call (585) 325-4445 for a free consultation.


[1] New York Vehicle and Traffic Law, Sections 1192-1199, available at http://law.onecle.com/new-york/vehicle-traffic/VAT0T7A31_T7A31.html.

[2] See Driver Violation Point System, available at http://www.dmv.ny.gov/license.htm#points.

[3] See People v. Berg, 92 N.Y.2d 701, 708 N.E.2d 979 (1999).

[4] Id.

[5] New York Vehicle & Traffic Law, Section 1194(2), available at http://law.onecle.com/new-york/vehicle-traffic/VAT01194_1194.html.

[6] Id.