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DWI/DWAI DEFENSES

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

JOHN PAUL DEVERNA HAS THE DWI EXPERIENCE YOU NEED

John Paul DeVerna has years of experience on both sides of the aisle and is qualified to defend your Driving While Intoxicated or Driving While Ability Impaired case (known as "DWI" and "DWAI", respectively).  

The strategies and tactics learned while prosecuting and defending these types of cases may be enough to show you are not guilty.

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WHAT A PROSECUTOR NEEDS TO DO TO GET A CONVICTION 

An arrest is only an accusation.  To be convicted of a Driving While Intoxicated (DWI) as a felony, DWI as a misdemeanor, Driving Under the Influence (DUI), Vehicle and Traffic Law 1192.3, 1192.2, 1192.1, or any other crime, the Prosecutor must prove each and every element of that crime beyond a reasonable doubt.  

 

In any DWI case, the prosecutor must essentially prove two things about the accused:  

(1) He was Operating a motor vehicle; and

(2) He was Intoxicated (and/or Impaired) when doing so.  

HOW TO SUCCESSFULLY DEFEND A DWI/DWAI

The Prosecutor will attempt to prove an accused is guilty by introducing testimonial, physical, and scientific evidence.  Each of these types of "evidence" may be subject to error.  

 

Below are a few areas a compentent attorney may explore that could undermine the prosecutor's argument that a person is guilty beyond a reasonable doubt in a DWI/DWAI trial.

REMEMBER: The information below is general information meant for educational purposes only.  It does not create an attorney-client relationship with any person who views it.  If you need personalized legal assistance, always speak with a qualified attorney.

THE OFFICER MADE A MISTAKE

 

1. OFFICER CONDUCTED AN ILLEGAL CAR STOP

The Constitution protects each of us from arbitrary governmental interference.  What this means in a DWI context is a police officer may not just pull someone over because he feels like it, instead the officer has to point to specific facts that led him to believe he was entitled to pull a car over.  If he cannot do that, the case will likely be dismissed.

 

2. OFFICER HAD INSUFFICIENT REASON TO ARREST ON SCENE

Even if the officer can articulate a valid reason he stopped someone, he cannot just arrest that person and administer a chemical test without cause. The officer has to point to evidence he had before the arrest that that the person committed the crime of drunk driving. If he cannot do that, the case will likely be dismissed.

 

3. MIRANDA WARNINGS WERE NEVER GIVEN

The Constitution guarantees our rights, including the right to remain silent.  If someone is placed under arrest and the Police question that person hoping they will say something incriminating, the response to those questions will not come out during trial.  Other than spontaneous statements, the only statements that can be used in court are statements that were made after a person was apprised of their rights and then knowingly waived them.  If the officer cannot demonstrate that the statement was spontaneous or made after a waiver of one's Constitutional rights, then those statements will likely not be used against them at trial.

 

4. OFFICER IS NOT CREDIBLE

An accused should not suffer at the hands of a corrupt or incompetent police officer.  That is why the judge will instruct the jury that a police officer's testimony should be given the same weight as any other individual.  In a DWI trial, a police officer would be called to tell the jury what he remembers observing on the day of the DWI arrest.  Since most New York police vehicles have no video camera, the case can rise and fall on their word alone.  Given the grave consequences an accused person suffers if found guilty of DWI, an officer's testimony should be fully explored and his credibility carefully examined.

 

In connection with an arrest, a police officer prepares paperwork, including a memo book, scratch report, and a complaint report.  Exposing things in the police paperwork that are inconsistent with the Officer's trial testimony can show the jury the police officer was wrong when he made his accusation. These inconsistencies call the officer's testimony into question, and may lead to an acquittal.

 

For DWI arrests, the police officer uses a form which has check boxes to indicate whether the accused exhibits "bloodshot and watery eyes", "slurred speech", "an unsteady gate", "flushed face", or "alcohol on breath".  There are obvious innocent explanations for each including; exhaustion, drowsiness, eye strain, or crying that can cause bloodshot and watery eyes.  Diabetes, embarrassment, or speech impediment can result in slurred speech.  Age, physical impairment, injury, ear infection, obesity, or diabetes can cause an unsteady gate.  Anger, hot flashes, and sickness can lead to a flushed face.  Alcohol has no smell, but what the alcohol is in (beer, wine, or liquor) may leave an odor.  The odor of alcohol can be attributed to things other than alcohol on breath including a drink being spilled on someone, or someone consuming a non-alcoholic beer.  These check-list traits can just as easily be caused by things other than consumption of alcohol.

 

Because there are so many innocent explanations for exhibiting any of these common behaviors, the police officer may be called to testify and give his opinion that the person he arrested was intoxicated. The officer may point to erratic driving, or other behavior exhibited by the driver as the basis for his conclusion that the suspect was intoxicated.  If he does not want to lose credibility with the jury, the police officer must acknowledge that a traffic offense - be it speeding, weaving through traffic, wide turns, or lane drifting - are behaviors that are also exhibited by a distracted driver, inattentive driver, or tired driver.

 

With so many innocent explanations, a Prosecutor may argue to the Jury that the officer's conclusion that the defendant was drunk is enough to demonstrate he was intoxicated.  A police officer, however, is not necessarily an expert witness in intoxication and an attempt to argue that is forbidden.  Since a police officer is prone to make mistakes just like anyone else, a Prosecutor will rely heavily on the Breathalyzer machine results (discussed below) to try and demonstrate that the defendant was intoxicated.  This approach has its pitfalls, especially if the officer's recollection is inconsistent with what would be expected given the results of the Breathalyzer.

 

If the jury finds the police officer made significant mistakes, exaggerated or testified falsely, it can mean the person will be acquitted.

 

 

SCIENTIFIC ERROR ON THE BREATHALYZER

 

5. A BREATHALYZER CAN BE WRONG

A Breathalyzer is a typewriter sized machine used by the police to measure someone's blood alcohol content (known as a "BAC") that has been consumed and diffused into the lungs.  A DWI suspect blows through a tube connected to the Breathalyzer and a sample is captured inside the machine.  Using infrared, the machine measures BAC in the collected sample by detecting any chemical compound that contains the methyl group in its molecular structure and compares it to a known liquid (known as the "simulator solution").  While the machine registers for all methyl group compounds, the machines are programmed to presume that any methyl found is ethyl or ethanol (the alcohol associated with wine, beer, liquor).  There are, however, thousands of methyl group substances other than alcohol which can result in a BAC reading.  In addition to this design flaw, the machine is subject to additional errors.  It is important for a jury to consider the design and any errors when deciding what weight to give to this "scientific evidence."

 

6. THE RESULTS ARE INADMISSABLE

Just like a car needs to be tuned-up to run properly, so too does a Breathalyzer machine.  The law requires that a Breathalyzer be calibrated 6 months before and 6 months after a reading prior to the prior to the BAC results being introduced in court.  And just like the oil in your car, the simulator solution has to be regularly changed out and tested.  To assure that the machine was in strict adherence with the law, the defense attorney should request maintenance records, calibration documents, and certifications on all equipment and personnel.  If the machine or substance was not properly maintained, the Breathalyzer results are inadmissible.

 

7. INHERENT PROBLEMS WITH THE BREATHALYZER

Even if the machine is perfectly calibrated and the breath test is flawlessly administered, Breathalyzer tests may have an error rate of +/- .01% or more.  At trial, that number may be the difference between a conviction and an acquittal.

 

BAC IS AFFECTED BY PHYSICAL & MEDICAL CONDITION, MEDICATION, AND DIET

Many factors can contribute to a falsely high reading, including one's physical and medical condition, medications consumed, and diet.

 

8. PHYSICAL CONDITION CAN GIVE A FALSELY HIGH BAC

To get its reading, the Breathalyzer machine makes certain assumptions about individuals, including the amount of air blown into the machine and the temperature of the subject's breath (34 C. / 93.2 F.). Variations in breath sample or one's body temperature may make the reading inaccurate.  Conditions like asthma, bronchitis, emphysema, and other lung conditions may affect the sample size and lead to a higher reading.  A breath sample of above 34 C. may also result in a falsely high reading.  Things that may cause a higher body temperature (and an erroneous reading) include fever, the stress and anxiety of being arrested, physical exertion such as dance or exercise, or having been in a hot environment such as hot tub or sauna.

 

9. MEDICAL CONDITION CAN GIVE ERRONEOUSLY HIGH BAC READING

Breathalyzers are meant to measure the amount of alcohol in a person's blood by measuring the amount of methyl alcohol in their lungs.  The test, however, measures both the alcohol in the lungs and alcohol in their mouth.  This dual reading can dramatically affect the BAC reading.  For example, a slight and discreet regurgitation or belch may force alcohol from the stomach into the mouth and change the BAC results by up to fourfold.  While things like burping, heartburn, GERG, and acid reflux, may cause an erroneously high BAC, even failing to floss can affect the reading.  Decaying food caught in one's teeth may ferment which releases alcohol and can also affect BAC.  

 

A diabetic, borderline diabetic, or hypoglycemic may also have a false high reading.  The Breathalyzer tests for the presence and amount of methyl groups in the lungs.  A well-known by-product of extremely low blood sugar (known as "hypoglycemia") is diabetic ketoacidosis (known as "DKA") which causes the body to produce a chemical called acetone.  Acetone is another methyl compound picked up by the Breathalyzer, that can result in erroneously high readings.

 

10. MEDICATIONS CAN AFFECT BAC RESULTS

Many medications can also lead to falsely high BAC readings.  To treat asthma, a person often uses an inhaler that contains methyl groups (e.g. Albuterol).  When a person uses an inhaler they are depositing alcohol directly into their lungs which may dramatically increase BAC.  Breathalyzers test for the presence and amount of methyl groups in the lungs.  Thus, if a person submits to sample breath test shortly after using an asthma inhaler, their BAC may read higher than it otherwise would.  If an individual has consumed alcohol in addition to using their inhaler, studies show their BAC may be affected for more than 20 minutes.  

 

To treat the pain associated with a toothache, canker sore, or a cold sore, a person may take Anbesol, an oral gel, Listerine, or other similar medication.  These medications often contain alcohol.  If a person has consumed any of these medications, their BAC reading may be erroneously high.  To treat cold or flu symptoms, a person may take cold medicine or cough syrup which contain alcohol.  If an individual has consumed these, or other products that contain alcohol their BAC may be affected.

 

11. DIET CAN AFFECT THE ACCURACY OF THE MACHINE

Food choice and diet may also affect the accuracy of the machine.  Many people today consume high protein; low carbohydrate diets (e.g. the "Atkins Diet").  When a person is on this type of food regimen, and the body is metabolizing, the body produces compounds called ketones.  When a person who has ketones in the body consumes alcohol, the combination may produce another type of methyl group known as isopropyl.  Because the Breathalyzer does not distinguish between methyl groups, this may result in a false BAC reading.

 

WHEN THE ACCUSED WAS ACTUALLY DRUNK

It is drunk while driving, not drunk while at the police station.  The law requires that the Prosecutor proves that the subject was intoxicated while driving the vehicle. The Breathalyzer tests the subject's blood alcohol level at the precinct sometimes hours later.  During this intervening time, depending on the speed their body absorbs alcohol, their blood alcohol level may continue rising.  It may be only after they were done driving did they reach a level of intoxication.

DEVERNA LAW

111 John Street, Suite 1615

New York, NY 10038

 

Tel. (212) 321-0025

Fax (212) 321-0024

 

E-mail:

jpd@mynylawyer.com

 

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