Driving While Intoxicated (DWI)
Under New York law, the prosecutor has two different ways of proving driving while intoxicated (DWI). First the prosecutor can show that the driver operated the vehicle while in an intoxicated condition. Alternatively, the prosecutor can show the "per se" version of DWI which requires a showing that the driver's blood alcohol content was above the legal limit of 0.08 regardless of whether the driver was actually impaired.
This website is intended to provide you with important insights into New York DWI penalties and processes. You should not take the content on this website as legal advice. In order to properly assess your case, you should contact a lawyer experienced in DWI cases. The following links contain information about New York DWI factors and charges:
- First DWI Offense
- Second DWI Offense
- Third or Subsequent DWI Offense
- Felony DWI
- Aggravated DWI / .18% BAC or Higher
- Vehicular Assault
- Vehicular Homicide
- Underage 21 DWI / Zero Tolerance Law
- Driving While Ability Impaired / DWAI
- DWI with Child in Vehicle / Leandra’s Law
- Breathalyzer Test / DataMaster DMT and Dräger Alcotest
- Blood and Urine Tests
- Refusal to Submit to BAC Test and Refusal Hearings
- DMV License Revocation Hearings
- Hardship Hearings
Any type of DWI conviction can have serious repercussions on your life and even that of your loved ones. A DWI can negatively impact future employment and housing options. For professionals in certain fields, including medicine, law enforcement, and aviation, this can mean additional penalties or even endanger your current employment. As a student, it can result in severe disciplinary action or expulsion. It is vital to carefully consider your legal options if you are facing a DWI charge in Queens or any other New York borough.
Queens DWI Attorney
Rochelle Berliner represents clients charged with DWI or operating a motor vehicle under the influence of alcohol contrary to New York's Vehicle and Traffic Law Section 1192. With almost 20 years of experience in the criminal justice field, Ms. Berliner has approached cases as both a prosecutor and criminal defense attorney. This insight gives her the confidence to pursue dropped charges and minimized penalties for her clients.
The Law Office is located in Queens County. Ms. Berliner accepts cases from men, women, and minors charged with DWI crimes in Queens, Manhattan, Brooklyn, The Bronx, and Staten Island. She also represents clients in both Nassau County and Suffolk County, Long Island. Call the for a free consultation.
- Lawfulness of Vehicle Stops in NYC
- Proof of Vehicle Operation
- Proof of Intoxication by Alcohol or Drugs
- Field Sobriety Exercises Used in NYC
- DWI and Blood Tests
- Admission of DWI
- Officer Took Statement Without Reading Miranda Rights
- Types of DWI Charges under New York Law
- New York DWI Resources
The law enforcement officer must have a valid reason for the initial stop of the vehicle or detaining the driver before conducting any DWI investigation. Any stop deemed "unreasonable" under the Fourth Amendment of the Constitution of the United States may result in ALL evidence being suppressed which would make any prosecution for DWI impossible.
Valid reasons for initially stopping the vehicle or detaining the driver may include:
- observations that the driver was operating the vehicle erratically;
- observations of the stopping officer that the driver violated a specific section of New York's traffic laws;
- the driver was involved in an accident causing property damage, minor injury, or a serious injury or fatality to another;
- a civilian complaint when a good samaritan calls the police to report an erratic driver; or
- a roadblock.
At trial, the prosecutor must be able to prove that the person charged with DWI actually operated the vehicle at the time of intoxication. This showing can be made in any of the following ways:
- the arresting officer's observations;
- observations by any civilian witness;
- admissions by the defendant that he was driving;
- circumstantial evidence such as:
- defendant at the wheel sitting in the driver's seat;
- defendant near the vehicle;
- keys in the ignition;
- the motor was running;
- the fact that the defendant injured in crash, particular in a manner that was consistent with injuries that the driver would suffer.
When writing up the police report, the law enforcement officers will report as many factors as possible that might support a finding of probable cause for the arrest. In case after case the officers tend to cite the same facts which are conveniently listed on their police report as options that merely need to be checked:
- an erratic driving pattern;
- the odor of alcoholic beverage;
- impaired speech;
- glassy eyes;
- impaired motor coordination;
- admissions by the driver that the driver has consumed an alcoholic beverage;
- open containers or alcoholic beverages in the vehicle;
- poor performance on field sobriety tests;
- conduct of a "guilty conscience" including one of the following:
- screening test refusal;
- chemical test refusal; and
- resisted apprehension.
- positive breath screening test;
- observation by civilian witnesses; or
- the odor of marijuana.
Under New York law, the arresting officer will often request that the driver perform a number of standardized roadside agility tests, often called "field sobriety exercises." Those roadside sobriety exercises were also designed to measure the driver's ability to listen to instructions, and perform physical exercises while also keeping track of mental exercises such as counting.
These exercises including the following:
- The gaze nystagmus;
- The walk and turn exercise;
- The one leg stand;
- The finger to nose exercise; and
- Reciting the alphabet.
Under New York law, in certain types of cases the arresting officer can obtain a blood test. The blood sample can be drawn by a nurse, physician, EMT or Lab Tech during the course of medical treatment. Additionally, in certain cases, the court can order a blood test which is then sent to a lab for analysis.
In order to get as many incriminating statements as possible from the driver, the law enforcement officer will often ask the following types of questions:
- Have you been drinking?
- How much?
- What type of alcoholic beverages?
- Where did you consume the alcohol?
- Where you driving to?
- Where had you been driving from?
- Do you have any prior alcohol convictions?
- Are you currently under any DWI suspension or revocation?
- Will you take a screening test?
- Will you take a chemical test?
In many cases, the arresting officer will make a mistake in not properly advising the driver of his right to remain silent under Miranda. Any such mistake may result in the court suppressing or excluding any statements at trial.
Under New York law, the following types of offenses can be charged depending on the facts of the case and any prior convictions:
- DWAI under 1192.1;
- DWI 0.08% BAC or Greater 1192.2;
- DWI Intox 1192.3;
- DWAI drugs 1192.4;
- Felony 0.08% BAC or Greater under 1192.2 and 1193.1(c);
- Felony DWI under 1192.3 and 1193.1(c); or
- Consumed alcohol under 21 years of age under 1192-a.
Mothers Against Drunk Driving (MADD), New York - As the nation's largest non-profit organization working to combat drunk driving, MADD has helped change related legislation and educate the public. The organization also provides a supportive environment for drunk driving victims and their families.
Alcoholics Anonymous of New York - The AA is a non-profit organization that was formed in 1935 to help alcoholics achieve and maintain sobriety. Today the organization has over 2 million members in the United States and across the globe. The AA's 12 Step Program is a popular method used to help guide the user through questioning, acceptance, and an ultimate moral victory over the disease of alcoholism. AA meetings are run for and by alcoholics. Members are invited to share their stories and participate in general discussions.
Greater New York Region of Narcotics Anonymous - Similar to AA, Narcotics is run and driven by members. It is designed to help men and women addicted to narcotics accept and overcome their addiction through discussion and literature. It also provides dialogue and resources to help family members and loved ones become strong supporters.
"You and the Drinking Driving Laws" - This PDF guide, prepared by the New York Department of Motor Vehicles, outlines the state penalties for drunk driving. It also answers many of the most asked questions regarding New York DWI laws.
New York State Drinking Driving Program - The New York DMV leads a statewide program to rehabilitate drunk drivers. This website contains application forms and guidelines for acceptance.
NEW York DWI Arrest Instrument [DCJS 3204] - You can learn a lot about how DWI crimes are investigated in New York by looking at the standard forms and reports that law enforcement officers in the State of New York must complete with each DWI arrest.
Law Office | Queens DWI Lawyer
As a DWI lawyer, Rochelle Berliner has represented many individuals charged with drunk driving in Queens and other New York boroughs. Every case is unique and Rochelle Berliner focuses all of her attention on analyzing the specific details surrounding your criminal charges.
Our Queens criminal defense attorney understands common weaknesses in the prosecution's case, which can include illegal stops, arrests without probable cause, failure to read Miranda rights, and more. Contact the Law Office at or submit an online form to receive a free, confidential consultation.
- Driving While Intoxicated