Sunday, January 14, 2007

Drinking And Driving Does Not Equal Driving While Intoxicated

I have spent the better part of this holiday season trying to disabuse potential clients of the idea that because they had a drink and drove, didn't mean that the prosecutors could prove they were drunk at the time they were arrested. The anti-alcohol lobby has done an excellent job of telling America, wrongly of course that if you drink and drive, you're guilty of Driving While Intoxicated.

If you were not driving while intoxicated, under NY law you are not guilty of the crime. There are many ways to attack an unlawful charge of driving while intoxicated.

To begin, If there were others in the car with you, and they can testify to your sobriety that will help. In a recent trial a policeman testified that the defendant was weaving within his lane and twice hit a divider. The police officer wrote a ticket for failing to maintain lane (he needed probable cause to stop and otherwise legally driven car so he could breath test the driver.) The defendant and his friend both testified that it never happened. The jury failed to convict on the charge. Juries do not always believe the police.

Second, assuming that the accused was drinking at a bar or restaurant before driving a bill from the bar or restaurant that delineates what was consumed can be strong evidence of total consumption especially when coupled with the bartender or waitress testimony or that of fellow diners.

Inaccuracies as to how the Standardized Field Sobriety Test is given also can lead to a jury raising reasonable doubt as to one's guilt of intoxication at the time they were operating a motor vehicle.

Finally if the judge will allow it, there is the issue that the breath test does not test your actual blood alcohol level and there may be medical evidence to attack the validity of the test.

With new plea bargaining rules in place in Nassau and Suffolk Counties it may behoove those that are facing the real possibility of jail to skip the Breath test. If one has taken the test, there is a very good attack on both the science of the machine and the way the test is taken. One of the most damaging pieces of evidence is that police will not allow defense experts to examine their machine. After all, if they have nothing to hide, why won't they let our expert take a peek?

The main message here is that even though the politicians and the advocates for the anti-alcohol lobby have been snowing America for years there are very strong defenses for someone who is wrongfully accused of drinking and driving. The most important part of the puzzle is finding a lawyer who is not afraid of the jury and is not in it to cash in on your misfortune. A lawyer who is really going to put the people to the test is going to be expensive. There will be motions and hearings and trials involved. With the cost of an expert witness or witnesses the cost could easily run in the tens of thousands of dollars. That said, with District Attorney's in both Nassau and Suffolk counties on Long Island and even in Queens County tightening up their plea bargaining rules, and with the New York State Legislature making ridiculous rules that can ruin lives of good people wrongfully accused of this crime, the investment in winning a trial is far more than worth the cost.
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