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The Oldest Question: Do You take a Test?

Well, it may not be the oldest question, but it may be the most important. Since the 1940’s and the onset of cheap blood alcohol testing, it is one that lawyers and defendants must initially face following a DWI arrest. Should you or shouldn’t you take the test?

The answer to this, like everything else in law, is it depends. Like predicting the weather, the answer to this question turns on a variety of factors. While much of what I say here may be useful nationally, because I believe in staying within my own bailiwick, many of the salient points will be tailored to New York.

First things first. Was an accident involved? As a general rule, if an accident was involved I almost always default to refusing the test in as much as you do not want to acquiesce in giving the authorities the very key they need to send a client to State Prison. Regardless of what a motorist is told, the accident may involve serious injuries or death.

Secondly, does the motorist have a prior conviction for an alcohol related operating offense, and if so, when? Initially, if a New York arrestee has been convicted of any alcohol related operating offense within five years of a second arrest, he or she will be ineligible for any form of licensing whatsoever. His or her license will be suspended at his or her first appearance and he or she will be ineligible for any form of conditional license upon any alcohol related conviction. Further, under recent regulations implemented by the Department of Motor Vehicles, if the motorist has three convictions within the preceding twenty five years, he or she will be ineligible for any form of conditional licensing.

Then there is the obvious. If the individual has been convicted within ten years of an alcohol related crime (DWI, DWAI drugs, DWI Alcohol and Drugs, Aggravated Driving While Intoxicated, Alcohol related Penal Law violations) he or she will be facing a felony upon conviction. Here, the number will be essential. A low number, .10 or less, may be the motorist’s ticket to a misdemeanor or non-criminal reduction. Conversely, a high result may prove to be the kiss of death.

Naturally, a motorist who makes this decision on his or her own has to live or die by the decision. An attorney, if consulted must take great care to attempt to ascertain how much the motorist has consumed and what his or her state of intoxication is. When doing so, recognize that most police officers will not afford the motorist privacy during these discussions since they will normally occur as a telephone call during the so-called “observation or depravation period.” It is further complicated by the fact that the motorist must be encouraged to be absolutely honest. If they are not, the advice you give them is akin to Nance Garner’s description of the Vice-Presidency: “It aint worth a bucket of warm spit!” Therefore, the first instruction I give the motorist is to be absolutely honest. I advise then that they are simply wasting their time (not to mention mine) by lying. I then advise them to answer “yes” or “no” only. Sometimes it takes a couple explanations, but following this instruction is mandatory. Any officer who hears “ten beers and a shot” is not going to forget such a gift. Don’t assist the police. Make sure it is just “yes” or “no.” Thereafter you do the following, “were you drinking beer? Were you drinking wine? Were you drinking hard liquor?” The same procedure is followed for numbers (“did you have more than one?”) and times (“Did you start before 7 pm?”).

My next move is to ask the motorist what he or she does for a living. This is important because you need to know what needs the individual will have for licensing. Must he or she drive for work, does he or she have an inordinately long way to travel to get to work. This is important because in New York, a motorist who submits to a test may be eligible for a Hardship Privilege and following thirty days, a conditional license that allows him or her to drive to and from work and during work hours. A person who refuses gets nothing.

Lastly, I give the motorist a quick lecture about being respectful with the officer and then ask to speak with him or her. I find that if I start the conversation by asking the officer if the motorist is treating the officer with respect, I may be able to find out some useful information such as how he or she did on the FST’s or if a Preliminary Breath test was given and possibly the result.

With all this information in hand you are ready to make a decision.

You know all the formula’s. Any attorney who does these cases on a regular basis should be able to perform a rough calculation of BAC in his or her head. Even so, remember this. In almost every instance when you advise the motorist to take the chemical test, you will be laying the basis for a new and distinct crime, Driving While Intoxicated per se. Further, if he or she blows .18 or higher, he or she will be charged with a more serious offense, Aggravated Driving While Intoxicated.

Above all, when making these determinations, you should have an eye on you jurisdictions plea bargaining policies.

The foregoing notwithstanding, are there any situations where you should recommend that a highly intoxicated individual blow? I believe there is. If he or she has an absolute employment related need for a driver’s license, with no accident, and no prior you may want to recommend submission. In 90% of these cases the motorist will be convicted of the criminal charge. If he or she is eligible for conditional licensing privileges, allowing them to keep their job may be the soundest decision you can make.

About Ed Fiandach

Ed Fiandach
In 1976, nationally renowned Rochester New York DWI trial expert, Edward L. Fiandach, presented his first paper on Driving While Intoxicated. Since then he's given over 100 lectures on DWI, became New York's first Board Certified DWI Specialist, authored two sets of books on DWI, Edward L. Fiandach, Esq. Click here for a full listing of Ed's credentials. Edward L. Fiandach established a firm that tries more DWI cases than any firm in the State of New York and has written more articles on New York DWI than any attorney in the world. His monthly DWI newsletter, The New York DWI Bulletin, is the only statewide publication of its kind and for twelve years has been continuously used by lawyers, prosecutors and judges across the state. His annually supplemented DWI treatises, New York Driving While Intoxicated, 2d and Handling Drunk Driving Cases 2d, both two volume, nationally distributed texts, are widely acclaimed as the most authoritative publications of their kind. His DWI articles have been published nationally in The Magistrate, The Public Defense Backup Report, The Daily Record, Rochester Democrat & Chronicle, Times Union, Criminal Justice Journal and The Automobile Liability Newsletter, The Champion and numerous state and local bar association publications in New York and elsewhere.

If you would like to contact the author, please visit: http://www.nydwi.com


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