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Drunk Driving

Drunk driving is a serious offense and can lead to suspension or revocation of your driver's license, hefty fines and even jail terms. Driving while intoxicated (DWI), driving under the influence (DUI), and driving while ability impaired (DWAI) are terms used to describe various punishable drunk driving offenses, although the blood alcohol limit defining each of these terms differs from state to state.

It's critical to know that you may also be guilty of DWI/DWAI for driving when your physical abilities are impaired by drugs or a combination of drugs and alcohol. In the eyes of the law, it makes no difference whether the drug is legal or illegal, prescription or over-the-counter. If taking that drug impacts your senses of seeing, hearing, talking, walking and/or judging distances, you may be guilty of a drunk driving offense.

Following are the answers to some of the most commonly asked questions about drunk driving. If you have a specific question that isn't answered, use our online form to submit your question and get a personalized response from an attorney at WylieLaw.

The Difference Between DWI, DUI, DWAI
Being Charged without Blood Alcohol Evidence
Losing Your License
Representing Yourself
Consulting an Attorney
What to do if You are Stopped by the Police
Field Sobriety Tests (FSTs)
Refusing a FST
Roadside Breath Tests (Breathalyzer)
Refusing af Breath Test
How Mouth Alcohol Distorts Tests

The Difference Between Driving While Intoxicated (DWI), Driving Under the Influence (DUI) and Driving While Ability Impaired (DWAI)

In New York State, DWI and DWAI are the legal terms used in drunk driving. The difference between DWI and DWAI is dependent on the blood alcohol level of the individual being charged. DUI is a drunk driving term, similar to DWI, used in other states. In New York,

  • Driving with a blood alcohol level between .08 and .10 would be considered a DWAI offense.
  • Driving with a blood alcohol level of .10 or greater would be considered a DWI offense.

To find out the legal limits in other states, check with your local bar association, law library, or consult with a DWI attorney in your area.

You Can be Charged with DWI or DWAI Without Evidence of Blood Alcohol Content

New York law allows for 'common law' drunk driving. Therefore, even without scientific evidence of a blood alcohol level, an individual can be charged with drunk driving. At trial, the arresting police officer could testify as to his observations of drunkenness at the time that he arrested the driver. This could include:

  • Swerving while driving
  • Failure to stay within a lane
  • Alcohol on the breath
  • Bloodshot eyes
  • Abusive attitude

Losing Your Drivers License

In New York, if you are charged with DWI and your blood alcohol content is alleged to be .10 or higher, you will face an automatic license suspension at the arraignment pending the outcome of the case. However, a request can be made to the arraigning Judge to grant a 20-day stay before suspending your license. The 20-day stay will give you sufficient time to apply for a conditional license that would allow you to drive to school or work pending the outcome of the case.

Representing Yourself

If you are arrested and charged with drunk driving, you can represent yourself — although it is a terrible idea. This is similar to a doctor doing an appendectomy on him/herself. Drunk driving laws are complex with increasingly harsh and constantly changing penalties. It is always best to consult with an experienced attorney who will know the most recent and current rules and laws in this area.

Why Consult an Attorney

If you are arrested for drunk driving, a qualified attorney can:

  • Review the facts of the case and the court record for mistakes, errors and defects.
  • File suppression motions with the court regarding evidence.
  • Compel discovery of such things as calibration and maintenance records for the breath machine.
  • Have evidence independently analyzed.
  • Negotiate for a lesser charge or reduced sentence.
  • Retain expert witnesses for trial.
  • Appear and contest the administrative license suspension.

What to Do if You are Stopped By the Police

The Fifth Amendment to the United States Constitution protects individuals from being forced to make self-incriminating statements. Therefore, if you are stopped by the police while driving and asked if you've been drinking, you have three basic alternative responses to this question:

  • Ask the officer why you are being stopped (even if it is a sobriety checkpoint) and politely inform the officer you wish to be on your way home. If the officer has no other basis to ask you out of the car, technically, you should be on your way. In reality, the officer may force you to take a field sobriety test or a breath test. If you are not intoxicated, you will be free to go. If you are found to be intoxicated, you will be placed under arrest and at a hearing or trial, the officer may offer testimony that he had reasons to suspect you were intoxicated when you were stopped.
  • Politely inform the officer that you would like to speak with an attorney before answering any questions. If you start with that answer, we suggest that you keep on giving that answer until you have consulted with an attorney.
  • Where appropriate, admit that you had a glass of wine with dinner. One glass of wine may not be considered incriminating (as that is not usually sufficient to cause intoxication) and if the officer has already smelled alcohol on your breath this might help him to understand that you are honest but not drunk. However, be ready for the officer to ask you to step out of the vehicle and to take a field sobriety test.

Roadside or Field Sobriety Tests

If the police officer observes some evidence of alcohol usage, he/she will ask you to perform a series of "field sobriety tests" (FSTs). Typically, these tests measure your physical dexterity or mental acuity. Most officers will use a set battery of three to five of the following tests:

  • Recite the alphabet
  • Count backwards
  • Line-walking
  • Finger-to-nose
  • Heel-to-toe
  • Balancing one foot at a time
  • Fingers-to-thumb
  • Head pat
  • Bending forward and backward with your eyes closed

If you have chronic physical problems or physical limitations, have difficulty with your balance, walking, etc., it would be wise to inform the officer prior to taking the tests. Also, in many localities the police routinely videotape all stops. If so, the FST may also be videotaped.

Refusing to take Field Sobriety Tests

Refusal to take an FST will most likely result in your arrest for drunk driving. However, if the officer is asking you to take this test, he/she has probably already decided to charge you with drunk driving. Also, as the FSTs are sometimes video recorded, if you perform well, this can be great visual evidence of your sobriety. Of course, if you perform poorly, this will be strong visual evidence of your drunkenness.

Roadside Breath Tests (The Breathalyzer)

A "roadside breath test" or "breathalyzer" indicates the presence and/or concentration of alcohol in your body based on a breath sample. The purpose in giving this test is to determine if there is reasonable cause to arrest you for driving under the influence.

Refusing a Breath Test

While you generally may refuse to take the test, your refusal may not stop the officer from arresting you if there is other evidence of alcohol usage (e.g., slurred speech, bloodshot eyes, clumsiness) that would affect your ability to drive. Your refusal might also have other negative consequences.

How Mouth Alcohol Can Distort a Breath Test

"Mouth alcohol" refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat, rather than from the lungs, can have a significant impact.

Mouth alcohol can be caused in many ways:

  • Belching, burping, hiccupping or vomiting within 20 minutes before taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat.
  • Taking a breath freshener can send a machine's reading way up (products such as Binaca and Listerine have alcohol in them).
  • Cough syrups and other products also contain alcohol and may distort breathalyzer readings.
  • Dental bridges and dental caps can trap alcohol.
  • Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times.
  • A chronic "reflux" condition from gastric distress or a hiatal hernia can cause elevated BAC readings.


Some of the information appearing in this section was based upon "California DUI/DWI Information: The Driver's Guide to DUI" by Lawrence Taylor, Esq.