The Ultimate Guide to DWI Law in Buffalo
The Ultimate Guide to DWI Law in Buffalo was created to help residents who have become arrested for drunk driving in WNY. We offer free phone consultations.
Drinking and driving is never the safer or smarter choice. But our judgement is not flawless, and sometimes people make mistakes. Unfortunately, with a DWI charge, one’s future prospects get steadily more and more grim. Depending on the severity of the charge and the prior record, an individual faces steep fines, possible jail-time, license suspension and a very bleak future. In Buffalo, DWI quite literally means Driving While Intoxicated. An intoxicant may be either alcohol or drugs. If you’re charged with a DWI in Buffalo, you are facing a serious allegation, even if it’s your first offense. A DWI occurs when an individual is charged with driving while having a Blood Alcohol Content (BAC) of 0.08% or higher. DWAI’s (Driving While Ability Impaired) are slightly less severe offenses. Individuals are charged with DWAIs when their BAC is between 0.05% and 0.07%.
Your BAC level depends not on your ability to operate a vehicle, but on the rate at which your body metabolizes the alcohol you have consumed. Moreover, the law does not take into account your confidence at being able to operate a vehicle at the time. The law is straightforward. If you blow anything over 0.05%, you have just broken the law.
Unfortunately, people occasionally make choices that seemed innocuous enough at the time. However, they turn out to be poor ones in hindsight. If you have ever decided to drive home after a drink or two, confident that your BAC level would be under 0.05%, you know how narrowly you escaped being charged with a DWI or a DWAI. All it would have taken was for a police officer to pull you over. And there is a 50% chance you will be pulled over. Because the two possible outcomes are that you get pulled over or that you don’t. each outcome is as likely as the other.
Your First Move When Pulled Over for a DWI
If you have been drinking and felt certain your BAC would be under 0.05%, and you decided to drive yourself home, you happen to be one of the thousand others who just made the same poor choice. People make mistakes. You suddenly look in your rear-view mirror and see a cop’s lights. You now have a terrible sinking feeling in your gut, a premonition that something dreadful is about to happen. What do you do?
Your priority should not be to get out of trouble at this point. Leave that to your DWI attorney. The police officer will pull you over; he will speak to you; he will find out you have been drinking. This is inevitable. Because the police officer will be observing you very closely, you should focus instead on ensuring the situation does not escalate. My suggestion is that you:
- pull over in a slow, methodical, reasonable manner; no sudden moves, nothing rash
- turn the vehicle off
- turn the lights on in the vehicle
- put your hands on the steering wheel
- wait for the officer to come to the car
- be polite and respectful
- avoid lying and being argumentative
- if you need to make any movements (like reaching into your glove box for your license and registration, or turning around to retrieve your bag that is in the back seat, etc), ask permission before you do; explain what you are going to do and why
It is important to remember that police officers are human beings too. Like you, they too fear for their safety. They place themselves in harm’s way to keep you and the general public safe. They haven’t the slightest clue as to what they should expect when they approach your vehicle. It makes them very skittish. Turning the lights on in the vehicle and placing your hands on the steering wheel enables them to see you and where your hands are. It makes them feel safer. Doing as the police officer says makes the entire process considerably smoother.
Typically, what happens is that the police officer will approach your vehicle from the driver’s side. They will ask you to shut the car off, if you haven’t already done so. They will ask you for your license and registration. If you must remove your hands from the steering wheel or make any movements to retrieve your documents, ask permission to reach for them. This shows that you are respectful and considerate, and are likely cooperative. Not asking permission before moving your hands from the steering wheel may be perceived as a demonstration of quick or sudden movement. This might alarm the officer.
You do not want to make the officer feel on edge. What you have actually done is far, far, far less severe than what they have to assume you may have done. In their minds, you might be armed and ready to flee the scene, or worse, pull out your weapon. The truth is that you drank an innocent little Bud Light before you got in your car. Do not give the officer reason to worry you may be a hardened criminal.
Additionally, the officer may ask you to exit the vehicle. It is prudent to comply. Remember to do so in a reasonable and respectful manner. Please follow all of the officer’s instructions and answer their questions. That being said, you do have rights. You do not necessarily have to answer every question, and you do not have to perform field sobriety tests that an officer may ask you to perform. I recommend you tell them that you would like to speak to an attorney as soon as possible and wait for them to allow you to do so.
The Seriousness of a DWI and Why You Need an Attorney
Being charged with a DWI or a DWAI in Buffalo is an extremely serious affair. This is because the repercussions are severe, and the law, unforgiving. It can affect an individual on several different fronts. First of all, you can lose your liberty. You can go to jail for a year (or several) if it is a felony and you have had priors, or 90 days if it is a violation. You could also lose your job. If your employment or your employer requires you to drive for your job, and you lose your license, you could ultimately lose your job. Additionally, there are some potential ramifications that could affect your ability to seek employment in the future.
Careers have withered and perished from the strain of DWI charges. Furthermore, you are facing exponential fines and fees as the process wears on. The case could cost several thousands of dollars; you might have to spend numerous weeks in counseling and trying to meet the rigorous requirements of the Department of Motor Vehicles. The only thing that can help you is a seasoned and dedicated attorney. Somebody who knows both sides. You are ideally looking for an attorney who has been both prosecutor and defendant.
Probable Cause for a DWI Arrest
If you have been pulled over in Buffalo and subsequently charged with DWI, there are certain things that a qualified, seasoned DWI attorney must assess to ensure that your charge is legitimate and legal. One thing that an attorney must look at is probable cause. Probable cause is a term of art that means different things to different people. However, it is one of the main elements of an arrest.
For instance, if a police officer pulls somebody over, they must have probable cause to pull that person over. They cannot just pick a person because of the color of the car or the neighborhood that they were in. They must have a reason. This reason is called probable cause. A seasoned attorney will fight for you whether or not there had been probable cause in that particular instance. A simple example would be whether or not the car was pulled over in a legitimate manner. A hearing called an Ingle Hearing will follow. It is called “People versus Ingle,” and that is a hearing that an attorney would run to determine if law enforcement had legitimate probable cause to pull your vehicle over.
Blood Alcohol Content and Field Sobriety Tests
Blood alcohol content (BAC) is the percentage of alcohol that is present in the blood stream of the driver. In Buffalo, there are different blood alcohol content levels and limits associated with DWI. For Buffalo drivers over the age of 21, the legal limit is 0.08% for private vehicles. If you drive a commercial vehicle, the legal limit is 0.04%. For drivers under the age of 21, the limit is 0.02%.
There is no sure way to determine exactly how many drinks it would take for an individual to reach the legal limit. Our bodies process and metabolize alcohol at different rates. There are BAC charts available online that are based on the weight of a person, that might prove to be good guideline. The charts are, however, not a guarantee. You should always err on the side of caution and drink less to avoid a DWI.
In Buffalo, field sobriety tests can happen in three ways. First, you may be given a series of physical tests. These tests enable the officer to formulate an opinion as to whether or not you are intoxicated, and if so, to what degree. Under Buffalo law, an officer is allowed to make this determination without administering either of the other two tests. The officer can also charge you with DWI if they observe tell-tale signs indicative of intoxication. These include a smell of alcohol emanating from your person, flushed cheeks, watery or bloodshot eyes, an unsteady gait, and so on.
The second type of field sobriety test in Buffalo is a breath test. In a breath test, the officer requests that you blow into a machine for a certain length of time. The machine will analyze the air coming out of your lungs to determine whether or not you are intoxicated at or past the legal limit.
The third type of field sobriety test in Buffalo is a chemical test. Samples of blood, urine or other bodily fluids are taken and tested to determine your BAC. This test usually takes place at the police department or at a hospital following the arrest.
If you are stopped in Buffalo and are suspected of driving under the influence of alcohol, the officer might ask you to take a blood alcohol test. In Buffalo, this typically will consist of a breathalyzer test, but it could also be a blood, urine, or saliva test. The purpose of the test is to determine your Blood Alcohol Content (“BAC”) – essentially the percentage of alcohol in your blood. In Buffalo, driving with a BAC above 0.08% will lead to a DWI charge.
You might be wondering what your options are when an officer in Buffalo asks you to take a blood alcohol test. Buffalo is very strict with their alcohol regulations across the board, and this no tolerance mindset carries over into the blood alcohol testing procedures and policies. In Buffalo, an officer has “implied consent” to require you to submit to a chemical blood alcohol test if he has probable cause that you were operating the vehicle under the influence of drugs or alcohol. Essentially, if you drive a vehicle in Buffalo, you are impliedly consenting to any chemical tests should an officer suspect you are intoxicated.
Blood alcohol testing in Buffalo usually is usually performed in two different stages: a pre-arrest “breath test,” also known as a “portable breath test” (“PBT”). This test can be administered if there is probable cause you were driving while under the influence of drugs or alcohol. While PBTs are less reliable and less accurate than the testing performed at a police station, they typically cannot be used against you in a DWI trial. More in-depth tests of the officers choosing will be administered after your arrest at the police station. You then have the right to request an additional test, to be administered by the physician of your choosing.
Declining Field Sobriety Tests
When you are stopped for DWI or DWAI in Buffalo, the officer has certain tools at his disposal that he may use to determine whether or not you are driving under the influence of either alcohol or drugs. One of those tools is called a field sobriety test. There are numerous of these field sobriety tests. A couple of them might be a walk and turn, the one-legged stand, the alphabet, or the finger count, which most people are familiar with. You do not have to submit to those tests. Most people do because they feel that being cooperative will help them get out of the situation, but you do not. You can respectfully tell the officer that you do not want to submit to those tests, and ask them if you can contact a lawyer as soon as possible.
Now, you have the right to refuse to take any chemical tests in Buffalo. However, such refusal is accompanied by harsh penalties. Because chemical tests are very important for the prosecution’s DWI case against you, refusing to take the tests results in an immediate 1-year suspension of your driver’s license. If you have refused testing or have a previous DWI conviction within the past 5 years, you will lose your driver’s license for 18 months. If you refuse testing and have had 2 prior DWI convictions or 2 refusals within the past 5 years, you can permanently lose your driver’s license. It is imperative to contact an experienced Buffalo DWI Lawyer if you have refused a breath test.
Typically, the officer must warn you that your driver’s license will be suspended for an entire year if you refuse to taking the blood alcohol tests in Buffalo. Further, if you do refuse testing, you will also have to pay fines of approximately $500 ($750 for your second refusal or if you have had a DWI within the past 5 years).
DMV Refusal Hearing
When you’re charged with a DWI in Buffalo, you will present yourself to the arraigning court, which is the first time that you are in court. This is when the judge learns of your refusal to submit to a chemical test when asked to do so by law enforcement. You will then be scheduled to appear at a DMV refusal hearing in front of an administrative law judge downtown. This is typically scheduled within 15 days of your arraignment. It is prudent to contact a seasoned attorney who is familiar with these types of hearings. Once you’re there, you’ll be asked to go into a room, similar to a classroom. Afterwards, the judge will swear you in as the defendant, and the police officer who is required to appear to give testimony.
It is important to contact an attorney immediately upon learning of the date because a seasoned attorney will prepare: he will look at your paperwork, talk to witnesses and be prepared when he goes into this hearing. If when you go into this hearing, the officer will try to prove three things: first that you were stopped for potentially driving under the influence of alcohol, second that you were asked to submit to a chemical test, and finally that you refused. If he can prove all three of these things, the chances of you having your license revoked are 99%. Unless of course there are some extenuating circumstances that an attorney can help you with.
Types of DWI in Buffalo
If you have been charged with drinking and driving, first you need to understand the difference between a DWI and a DWAI. DWI stands for ‘Driving While Intoxicated,’ while DWAI means ‘Driving While Ability Impaired.’
The difference is slight, but significant. DWI’s occur when you have been charged with driving with BAC (Blood Alcohol Content) of .08% or higher. DWAI’s are slightly lesser offenses, occurring if you have been charged with a BAC of .05% and .07%.
A DWI requires that you have a blood alcohol content that is above the legal limit of .08% or higher for private vehicles and 0.04% or higher for commercial vehicles. For Buffalo drivers, a DWI can be charged if you are impaired to a “substantial extent.”
An aggravated DWI is charged against Buffalo drivers if their blood alcohol content is 0.18% or higher of if you are driving drunk with a passenger who is 15 years old or younger.
Alcohol DWAI means that you are charged with DWI because of alcohol and you do not have the “reasonable and prudent” ability to control a vehicle.
If you are charged with a Drug DWAI, it means that it is alleged that you have drugs in your system that take away your “reasonable and prudent ability to control a vehicle.
A combination DWAI means that your ability to drive in a “reasonable and prudent” way is impaired by “any extent.” DWAI is considered a secondary offense. The difference between a DWAI and DWI is the amount of impairment.
DWI Offenses and Penalties
A DWI can be a misdemeanor or a felony. Usually, first time DWI charges in Buffalo are misdemeanors. However, if you have had a previous DWI, even if it was ten years ago, you could still face felony charges.
DWIs bring with them a risk of jail time. For first time offenders, there is no minimum amount of jail time you must serve. You could still be sentenced to jail time, but there is no minimum amount. Second DWI offenses in Buffalo have a minimum of 5 days in jail or 30 days of community service. Third DWI offenses in Buffalo have a minimum of 10 days in jail or 60 days of community service.
DWIs also come with expensive fines. First time offenses will include fines between $500 and $1,000. Second time offenses will include fines between $500 and $5,000. Third time offenses will include fines between $500 and $10,000.
You could also lose your driver’s license even if it is your first DWI in Buffalo. First time DWI charges result in a minimum of a 6-month suspension. Second time DWI charges come with a minimum of a 1-year suspension. Third offenses mean you will lose your license for a minimum of 6 years.
Regardless of whether or not it is your first offense, you will also be required to install an ignition interlock device in your car for a predetermined period of time.
Your First DWI Offense (Buffalo)
For your first DWI offense, classified as a misdemeanor, fines can range between $500 and $1,000 with the possibility of up to a 1-year jail sentence. Furthermore, you will lose your driver’s license for a minimum of 6-months. If you are under age 21, you will lose your driver’s license for even longer – at least a year, or until you turn 21 years old. This is because of Buffalo’s Zero Tolerance Law when it comes to underage DWIs.
Your Second DWI Offense (Buffalo)
If you have been charged with a DWI for the second time within 10 years, it will be classified as a Class E Felony, and fines will range between $1,000 and $5,000. You could possibly receive up to a 4-year jail sentence, and your driver’s license will be revoked for a minimum of 1 year. If you are under 21 years of age, you will lose your driver’s license for at least a year or until you turn 21 years old.
Your Third DWI Offense (Buffalo)
Your third DWI offense within 10 years will be classified as a Class D Felony. Fines for the third DWI offense will range between $2,000 and $10,000, and you could spend up to 7 years in jail. As with your second DWI offense, your driver’s license will be revoked for a minimum of 1 year. Further, if you are under 21 years of age, you will lose your driver’s license for at least 1 year or until you turn 21 years old.
Additional Buffalo DWI Penalties
In addition to the above consequences, for DWI offenses you could also receive a period of probation of up to 3 years, face a driver responsibility assessment of $250 per year for up to 3 years, and/or receive a possible revocation of your registration for a minimum of 6 months. Finally, you might be required to attend a Victim Impact Panel and be forced to install an ignition interlock device in any motor vehicle you own for a minimum of 6 months.
DWAI Offenses and Penalties
Your First DWAI Offense (Buffalo)
When you are charged with your first DWAI offense and need to defend it, it is useful to understand the various possible penalties. For your first DWAI, you will receive a mandatory fine between $300 and $500. Further, you will face a potential jail sentence of 15 days. Finally, your driver’s license will be mandatorily suspended for 90 days. You might also face a $255 surcharge, a driver responsibility assessment costing $250 every year for up to 3 years, and be required to attend a Victim Impact Panel.
Your Second DWAI Offense in 5 Years (Buffalo)
If you have been charged with a DWAI offense after having been convicted of a DWI, DWAI, Aggravated DWI, DWAI Combined Influence or DWAI Drugs within the past 5 years, the penalties are significantly higher. Most notably, your second DWAI offense will carry a discretionary revocation of your Driver’s license for at least 6 months. Furthermore, you will face a mandatory fine between $500 and $750, and a possible jail sentence up to 30 days. You might also face a $255 surcharge, a driver responsibility assessment costing $250 every year for up to 3 years, and be required to attend a Victim Impact Panel.
Your Third DWAI Offense (Buffalo)
If you have been charged with a DWAI offense after already having 2 or more convictions of DWI, DWAI, Aggravated DWI, DWAI Combined Influence or DWAI Drugs within the past 10 years, the penalties can be significantly higher because you can be charged with a misdemeanor DWAI.
You might face a fine between $750 and $1,500 and/or a jail sentence of 180 days. Further, you will not be relicensed for 5 years (plus however long your discretionary revocation lasts) – and after those 5+ years, you will be required to install and maintain an ignition interlock device for an additional 5 years. Before even being considered for relicensing, you will be required to provide evidence of alcohol rehabilitation. Finally, you might also face a $395 surcharge, a driver responsibility assessment costing $250 every year for up to 3 years, and be required to attend a Victim Impact Panel.
Aggravated DWI
If you have recently been charged with an alcohol-related offense, you might be wondering what the difference is between Driving While Intoxicated (“DWI”), Driving While Ability Impaired (“DWAI”), and Aggravated DWI offenses.
Aggravated DWI is a relatively new offense in Buffalo. Created in January 2007, Aggravated DWI in Buffalo imposes stricter penalties on drivers who were excessively intoxicated or were driving under the influence of alcohol while a child was present in the vehicle.
Understanding an Aggravated DWI in NYS
An Aggravated DWI in Buffalo can be charged when a driver was operating a motor vehicle while having a Blood Alcohol Content (“BAC”) of 0.18% or higher. An Aggravated DWI is still usually a misdemeanor, but the repercussions are more serious and it is more difficult to bargain down to a non-criminal infraction.
However, if you were charged with Driving While Intoxicated (“DWI”) while a child (age 15 or younger) was in your car, in Buffalo the offense can be upgraded to an Aggravated DWI. This is then called Leandra’s Law which can be classified as a Class E Felony.
Penalties for an Aggravated DWI (Buffalo)
If you have been charged with an Aggravated DWI in Buffalo, you may receive one or more of the following penalties:
- Up to 1 year of jail time
- Up to 3 years of probation
- $1,000 minimum fine, up to a $2,500 maximum fine
- Loss of your driver’s license for 1 Year
- Victim Impact Panel requisite attendance
- DMV Assessment of $250 per year, for 3 years
- Court surcharges up to $395
Repeat Aggravated DWI Offenses (Felony Aggravated DWI) in Buffalo
If you have been charged with an Aggravated DWI in Buffalo and have been previously convicted of an alcohol-related offense more serious than a Driving While Ability Impaired (DWAI), that previous offense will impact your sentence and you will be charged with a Felony Aggravated DWI.
Felony charges should not be taken lightly; they may result in serious repercussions that will have a long-term adverse impact on your life. The penalties and ‘Class’ of felony you can be charged with varies depends on the number of previous convictions you have is considered. If you have been charged with a second Aggravated DWI and the first occurred within the past 10 years, you might receive one or more of the following penalties:
- Up to 4 years of jail time
- Up to 3 years of probation
- $1,000 minimum fine, up to a $5,000 maximum fine
- Lose your driver’s license for 18 months
- Victim Impact Panel requisite attendance
- DMV Assessment of $250 per year, for 3 Years
- Court surcharges up to $395
Felony DWI
Buffalo imposes strict penalties on drivers who are convicted of a second DWI within 10 years of their first. Included in these harsh penalties is the elevation of the offense to a Class E felony.
Typically, alcohol-related driving offenses are not felony-level charges. However, there are quite a few situations where this does not hold true. Felony charges are a very serious issue.
Second Offense: Aggravated DWI (within 10 years) in Buffalo – Class E felony
When a driver is charged with a second Aggravated DWI within 10 years, he/she faces a Class E felony in Buffalo with a possible fine of $1,000 to $5,000 and up to 4 years of jail time. Furthermore, the driver will lose his/her driver’s license for at least 18 months.
Third Offense: Aggravated DWI (within 10 years) in Buffalo – Class D felony
When a driver is charged with a third Aggravated Driving While Intoxicated (“Aggravated DWI”) within 10 years, he/she will face a Class D felony in Buffalo with a possible fine of $2,000 to $10,000 and up to 7 years of jail time. Additionally, the driver will lose his or her driver’s license for at least 18 months.
Second Offense: DWI / DWAI-Drug (within 10 years) in Buffalo – Class E felony
When a driver is charged with a second DWI or Driving While Ability Impaired by a Single Drug other than Alcohol (“DWAI-Drug”) within 10 years, he/she will face a Class E felony in Buffalo with a possible fine of $1,000 to $5,000 and up to 4 years of jail time. Additionally, the driver will lose his or her driver’s license for at least 1 year.
Third Offense: DWI / DWAI-Drug (within 10 years) in Buffalo – Class D felony
When a driver is charged with a third DWI or Driving While Ability Impaired by a Single Drug other than Alcohol (“DWAI-Drug”) within 10 years, he or she will face a Class D felony in Buffalo with a possible fine of $2,000 to $10,000 and up to 7 years of jail time. Additionally, the driver will lose his or her driver’s license for at least 1 year.
Second Offense: DWAI-Combination (within 10 years) in Buffalo – Class E felony
When a driver is charged with a second Driving While Ability Impaired by a Combination of Drugs or Alcohol (“DWAI-Combination”) within 10) years, he or she will face a Class E felony in Buffalo with a possible fine of $1,000 to $5,000 and up to 4 years of jail time. Additionally, the driver will lose his or her driver’s license for at least 1 year.
Third Offense: DWAI-Combination (within 10 years) in Buffalo – Class D felony
When a driver is charged with a third Driving While Ability Impaired by a Combination of Drugs or Alcohol (“DWAI-Combination”) within 10 years, he or she will face a Class D felony in Buffalo with a possible fine of $2,000 to $10,000 and up to 7 years of jail time. Additionally, the driver will lose his or her driver’s license for at least 1 year.
Underage DWI
Recently, Buffalo has been cracking down on underage drivers operating motor vehicles under the influence of alcohol. Dubbed the “Zero Tolerance” law, Buffalo has enacted strict penalties which apply to any driver under the age of 21 that is caught driving after having consumed alcohol. While these penalties for underage DWIs and alcohol-related offenses in Buffalo can be very serious, a skilled attorney can help minimize the long-term damage these charges may cause to a young life.
Buffalo’s Underage Driving Laws for Alcohol-Related Offenses
Buffalo enacted harsh penalties for any driver under the age of 21 that decides to drive with even a tiny amount of alcohol in his or her system. This is often called an “Underage per se DWI.” Per se essentially means “it speaks for itself” and implies that the law doesn’t require proof of impairment; only that the driver was under the age of 21 and had the requisite amount of alcohol in their system.
That amount of alcohol for underage drivers is a Blood Alcohol Content (“BAC”) of .02% or greater – but lower than .08%. If an underage driver is caught with a BAC between .02% and .08%, he or she can be charged with violating the Zero Tolerance law.
However, if the underage driver’s BAC was between .02% and .05%, he or she will not be charged with a misdemeanor, that is he/she will not be charged with a crime. Instead, the driver will be referred to the Department of Motor Vehicles (“DMV”) for a hearing in front of an administrative law judge. During this hearing, the judge will decide whether a Zero Tolerance violation occurred.
Penalties for Violating the Zero Tolerance Law in Buffalo
If the administrative law judge determines that a violation of the Zero Tolerance law in Buffalo occurred, the driver will lose his or her driver’s license for 6 months. If the driver is underage and refused a breathalyzer test, the driver’s license will be removed for 1 year.
The above assumes that the driver’s BAC was between .02% and .05%. However, if the underage driver’s BAC was between .05% and .08%, the police have the discretion of charging the underage driver with a Driving While Ability Impaired (“DWAI”) and/or common law Driving While Intoxicated (“DWI”). Finally, if the underage driver’s BAC was more than .08%, he or she will be charged with a DWI under both the Per Se and common law.
Ignition Interlock Devices
If you have been convicted of Driving While Intoxicated (“DWI”) and have been sentenced on or after August 15, 2010, you must install a device called an Ignition Interlock Device (“IID”) on all vehicles you own. This device will be required for a minimum period of 6 months.
The modifications integrated the Ignition Interlock Device regulations, requiring that any driver convicted of a DWI must have an IID installed in any vehicle they own or operate. DWI offenders will also receive an “Ignition Interlock” restriction on their driver’s license in Buffalo.
Note that DWAI offenders are not required to install an Ignition Interlock Device, nor are offenders of DWAI by Drugs, nor DWAI by the combined influence of Alcohol and Drugs.
Leandra’s Law was enacted to honor the memory of Leandra Rosado, a child who was killed when she was riding in a vehicle with her friend’s intoxicated mother. After the horrific event, Buffalo enacted several modifications to the Vehicle and Traffic Law (“VTL”). These modifications harshened the ramifications for drivers who are under the influence of alcohol, especially with children present. Anyone charged under Leandra’s Law will be required to install the device.
What an Ignition Interlock Device Really Is
An Ignition Interlock Device is a mechanical device installed on any vehicles you may own and operate. This IID device requires you to blow into an intake tube, allowing the device to measure your Blood Alcohol Content (“BAC”). If your blood does not contain any alcohol, the device will allow your vehicle to start. After the vehicle starts, you will also be subjected to a second “rolling” breath sample within 5 to 15 minutes. After that first initial rolling sample, the device will require additional rolling samples randomly imposed every 30 minutes or so (they will never be longer than 30 minutes apart).
When the Ignition Interlock Device Detects Alcohol
If the IID detects alcohol on your breath, your vehicle will not start. You will be able to take a second “retest” within 5 to 15 minutes, and if you pass that test, your vehicle will start. However, if you fail that retest or choose not to take it, your vehicle will stop working and the device will need to be serviced within 5 days. Similar penalties (device servicing within five days) are imposed if you fail to take (or fail) a rolling test after failing/missing the initial rolling test, or if you miss a servicing appointment with the IID company that maintains the device.
Installing an IID After Sentencing
If you have been convicted of a DWI or another alcohol-related charge that requires the installation of an Ignition Interlock Device in Buffalo and Western New York, the device must be installed within 10 business days of sentencing. After installation, you must provide proof of said installation to the court, county probation department, or any other designated monitor that might have been assigned to you.
It is important to note that once you have been sentenced, your driver’s license will effectively have the “Ignition Interlock” restriction – meaning you cannot lawfully operate a motor vehicle without using an IID device. Thus, if you drove your car to the court, you will not be able to drive it home if you did not preemptively install an IID device.
Cost of Ignition Interlock Devices
Ignition Interlock Devices in Buffalo typically cost between $600 and $900 – but they can be more expensive.
Penalties Associated with Ignition Interlock Devices
If you are caught and convicted of one of the following, you will be guilty of a Class A misdemeanor (criminal offense):
- Allowing, soliciting, or requesting someone else to blow into an Ignition Interlock Device that was installed via Court order;
- Bypassing, tampering with, or altering a Court ordered Ignition Interlock Device;
- Operating a motor vehicle without using an Ignition Interlock Device that has been ordered by the Court.
CDL Suspension
Individuals driving in Buffalo with a Commercial driver’s license (“CDL”) must adhere to more stringent legal rules than standard citizens. This makes sense, because commercial drivers are typically operating heavy, dangerous trucks. However, there are many alcohol-related implications that Buffalo CDL drivers need to be aware of.
Until recently, Buffalo commercial drivers only had to worry about CDL ramifications for DWI and other alcohol-related penalties if they were actually driving a commercial vehicle. However, recent legal developments have shifted the landscape. Now, commercial drivers can lose their CDL if they are charged with an alcohol-related offense, even if it is received while they are driving a personal vehicle.
Commercial Driver License DWI Issues
As mentioned above, commercial drivers face harsher penalties than standard drivers. For non-commercial drivers, driving with a Blood Alcohol Content (“BAC”) of .05 to .07 is categorized as a Driving While Ability Impaired (“DWAI”) in Buffalo. However, CDL holders can now be charged with a violation if their BAC is between .04 and .06. This is a lower and stricter bar for commercial drivers.
Further, if CDL drivers are driving a commercial vehicle with a BAC of .06 to .08, they can now be charged with a misdemeanor. Contrast this with standard drivers, who do not incur criminal penalties until their BAC rises to .08.
Keep in mind that while CDL drivers face harsher penalties and stricter alcohol-related limits, they can also be charged with the penalties administered to standard drivers. That is, a commercial driver in Buffalo that is charged with a DWI will lose both their CDL and their normal driver’s license.
Penalties for Commercial Drivers / CDL Holders for Alcohol-Related Offenses
CDL Holder: “First Time Offense”
If you have a CDL and were charged with having a BAC of .04 or higher, you will lose your NY Commercial Driving License for a year (three years if you were transporting hazardous material) – regardless of whether you were driving a commercial vehicle. Additionally, if you were driving a commercial vehicle and had a BAC of .06 to .08, you can be charged with a crime (misdemeanor).
If you refused to Submit to a Chemical Test (covered by Vehicle and Traffic Law section 1194), such as a blood test, breath test, or urine test, then your CDL will be revoked for eighteen (18) months.
It is important to highlight that the above penalties apply to your CDL – you may also lose your regular driver’s license, although it will likely be for a lesser period of time.
CDL Holder: “Second Offense, or Subsequent Offender”
Buffalo is very strict on commercial driver DWIs. If you are a CDL holder and have previously committed one of the following offenses, no matter how long ago the offense occurred, your CDL will be revoked for 10 years.
- Any commercial driver DWI related offense (Vehicle and Traffic Law section 1192).
- Leaving the scene of an accident which damaged property or caused injury.
- Any felony which involved the use of a vehicle.
- Refusing to Submit to a Chemical Test (Vehicle and Traffic Law section 1194).
If you have committed 3 of these offenses, your CDL will be revoked permanently. Note that the offenses must arise from separate incidents.
Frequently Asked Questions
What is a misdemeanor?
A misdemeanor is a crime in Buffalo that is punishable up to one year in local jail.
What is a felony
A felony is a crime in Buffalo that is punishable with a jail term longer than one year in state prison.
Will I lose my license?
That depends. This is an extremely complicated area in DWI law. There are several factors that come into play, and these factors vary from individual to individual, from case to case. Only an attorney will be able to educate and instruct you.
What is the difference between DWI and DWAI?
A DWI (Driving While Intoxicated) is an unclassified misdemeanor punishable up to one year in local jail. A DWAI (Driving While Ability Impaired) is a violation punishable up to fifteen days in jail.
What happens if you refuse to take a field sobriety test?
If you refuse to take a field sobriety test, you will face immediate consequences. Under the law, your driver’s license creates the duty for you to follow the laws related to operating a motor vehicle. The immediate consequences are not criminal in nature, but they will still drastically affect your life. The refusal may be used against you in court. Your driver’s license will also be suspended, even if it is a first offense.
What are the penalties for a DWI conviction?
If you’re charged with DWI or DWAI in Buffalo, there are certain things that are going to happen to you, potentially criminally and civilly. Criminally, depending on whether you’re charged with DWI or DWAI, you could end up in jail for a maximum period of one year if it’s a misdemeanor, up to several years if it’s a felony and potentially 90 days if it’s a misdemeanor or violation. In addition to that, you could end up on probation or end up with significant fines.
As far as your license is concerned, an arraignment, which is your first appearance in court after being charged by the police, you may or may not lose your license depending on what the judge does. He shall, according to the law, suspend your license pending prosecution. However, there is something called a hardship license that the judge may, at his discretion, be able to issue a driver charged if the judge can find extreme hardship that that person would be under after a hearing. Certainly, you should pursue a seasoned DWI attorney to run any of those hearings and address those matters with the court.
Subsequently, depending on which way your case goes, either conclusion by way of plea bargain or trial, after that, the DMV steps in and determines whether or not you’re going to get a conditional license and what courses you’re going to have to take, whether it be a drinking/driving program, which is a seven-week course, or any other assessments that the vehicle and traffic law requires you to get by a Buffalo certified counselor to determine if you have an alcohol or drug abuse problem.
What must be proven at an underage per se Zero Tolerance hearing in Buffalo?
At the DMV hearing, the judge will determine if a Zero Tolerance violation occurred. This means that the police officer must prove that the vehicle was stopped lawfully, that the individual was actually driving the car, that the individual was indeed under the age of 21 at the time of the offense, that the Blood Alcohol Content (“BAC”) test request was properly made, that the BAC test was given to the individual properly, and that the underage driver’s BAC was actually over .02% at the time he or she was driving the vehicle (or at the time the BAC test was refused).
What is an Ignition Interlock Device?
An Ignition Interlock Device is a mechanical device installed on any vehicles you own and operate. This IID device requires you to blow into an intake tube, allowing the device to measure your Blood Alcohol Content (“BAC”). If your blood does not contain any alcohol, the device will allow your vehicle to start. After the vehicle starts, you will also be subjected to a second “rolling” breath sample within 5 to 15 minutes. After that first initial rolling sample, the device will require additional rolling samples randomly imposed every 30 minutes or so (they will never be longer than 30 minutes apart).
What if the Ignition Interlock Device detects alcohol?
If the IID detects alcohol on your breath, your vehicle will not start. You will be able to take a second “retest” within 5 to 15 minutes, and if you pass that test, your vehicle will start. However, if you fail that retest or choose not to take it, your vehicle will stop working and the device will need to be serviced within five days. Similar penalties (device servicing within five days) are imposed if you fail to take (or fail) a rolling test after failing/missing the initial rolling test, or if you miss a servicing appointment with the IID company that maintains the device.
How soon after my sentencing do I need to install an Ignition Interlock Device?
If you have been convicted of a DWI or another alcohol-related charge that requires the installation of an Ignition Interlock Device in Buffalo and Western New York, the device must be installed within ten business days of sentencing. After installation, you must provide proof of said installation to the court, county probation department, or any other designated monitor that might have been assigned to you.
It is important to note that once you have been sentence, your driver’s license will effectively have the “Ignition Interlock” restriction – meaning you cannot lawfully operate a motor vehicle without using an IID device. Thus, if you drove your car to the court, you will not be able to drive it home if you did not preemptively install an IID device.
How much do Ignition Interlock Devices cost in Buffalo?
Ignition Interlock Devices in Buffalo typically cost between $600 and $900 – but they can be more expensive.
Are there any additional penalties associated with an Ignition Interlock Device?
If you are caught and convicted of one of the following, you will be guilty of a Class A misdemeanor (criminal offense):
- Allowing, soliciting, or requesting someone else to blow into an Ignition Interlock Device that was installed via Court order;
- Bypassing, tampering with, or altering a Court ordered Ignition Interlock Device;
- Operating a motor vehicle without using an Ignition Interlock Device that has been ordered by the Court.
Will my mugshot appear in the media?
Several towns have local bees: the Amherst Bee, the Lancaster Bee, or the Metro; they have reporters now who go to the police stations and really monitor these types of arrests, particularly DWI. You have Mothers Against Drunk Driving out there who take a very firm stand on this, so it’s extremely possible that somebody’s arrest could appear in one of these newspapers. It’s very important for that individual to advise their attorney of this concern.
Will my fingerprints and mugshot stay on file?
Yes. Additionally, Section CPL 160.50 states that no fingerprints or mugshots shall be returned upon a conviction of 1192 offense. They will therefore be on record permanently, and they will not be returned to you.
Can I go to Canada or another foreign country with a DWI?
If you’re charged with a DWI, it’s very important that you contact an attorney or advise your current attorney that you have business in Canada or a foreign country. Canada has been known to bar a US citizen who’s been convicted of a misdemeanor DWI, or in certain circumstances, driving while impaired, which is a violation. Sometimes they don’t make that distinction.
In addition, you will have to apply for a Minister’s Permit with the Canadian Consulate. That is a very narrow niche, and a very particular area of the law that you need to research thoroughly in order to get the right answers. Furthermore, a DWI conviction could affect your ability to enter or leave other countries, which you should also research prior to making plans to leave the country.
How long does a DWI stay on my record?
If you have been convicted of a DWI in the form of a misdemeanor or a violation, it will stay on your record permanently. Several people assume incorrectly that after a 10-year period, the conviction automatically falls off their criminal history report. It does not. It is not the same as a speeding violation or a stop sign violation, where after 48 months, the DMV takes those points off. A crime and a conviction for driving while intoxicated will always be on your record.
What is the ten-year rule?
The 10-year time limitation comes into play when you are charged with a DWI for a second time. The prosecution and the court will look at your criminal history report to see when your prior was. If it happened within the last 10 years, that DWI could potentially become a felony. It’s important to note, too, that the regulations with Department of Motor Vehicles have changed, and now, there is a lifetime look-back in terms of the suspension and/or revocation of your license. Generally, the 10-year rule is for criminal courts, and it generally does not fall off. This additionally does not imply that a DWI is erased from your record after a period of 10 years.
Can I lose my license from a DWAI?
It is highly probable that you are going to lose your license for a short period of time, if not permanently. When you are arraigned in the court wherein you received your DWAI, there is something called a suspension pending prosecution. This means that if you have submitted to a chemical test, more commonly known as the breath test, and scored a 0.08% or higher, the judge will suspend your license pending the outcome of this matter. You may, pursuant to the Department of Motor Vehicles, obtain a conditional license under certain parameters. You should certainly get to a seasoned DWI attorney as soon as possible because there are time restraints at the arraignment and short hearing periods afterwards.
How will a DWI conviction affect my professional license?
Folk who have professional licenses such as teachers, engineers, lawyers, or doctors should consult a DWI attorney as soon as possible upon arrest. The reason for that is said individual’s license may be in jeopardy and/or they may have to report that arrest to their licensing board. That also may trigger a potential hearing that could negatively impact their ability to work in that field or possess that license again.
How does a DWI affect a CDL license?
If you drive for a living, particularly a commercial vehicle, it’s extremely important that you contact a seasoned DWI attorney as soon as possible upon arrest. The reason for this is that Section 1196 7G of the vehicle and traffic law states that a certificate of relief from disabilities will not allow an individual to continue to drive a commercial vehicle. In addition, a conditional license that is often granted by the Department of Motor Vehicles does not allow an individual to continue to drive their commercial vehicle.
In addition to that most folks do not realize that if you’re off, you’re on vacation, and you get a DWI while you’re driving your personal vehicle, it will still affect your ability to drive a commercial vehicle. You will not be able to use your conditional license to further your employment whether you’re a truck driver or even a taxi cab driver. It’s extremely important that you notify your attorney as soon as possible so certain things can be done or address the hearing that possibly could come your way.
What happens if I am an out-of-state driver?
It could impact your license in your home state. You need to contact a seasoned attorney so you can research whatever the laws are in that state. What most states have now done is that they have together come up with a registry. This is a computer system that alerts the home state of the driver that they may have received and been convicted of an alcohol-related offense in another state. So when you come back home, you get a letter in the mail that could tell you your license is suspended and/or revoked for what happened on your trip.
What is an Alcosensor test?
When you’re pulled over for driving while intoxicated, law enforcement officers have several tools at their disposal to assess whether or not that particular driver is driving under the influence or merely are tired and driving erratically. They may ask a driver to submit to is Alcosensor test. An Alcosensor test looks like a throwaway camera box, which an individual is asked to blow into. It’s not scientific. It’s not admissible in court, as far as the score is concerned. However, it is admissible in terms of determining probable cause based on whether or not you blew positive for alcohol. Incidentally, if you do not submit to this test, that can be an indicium of guilt and the prosecutor can introduce that at a trial, if it goes that.
How can I get a hardship license?
If you’re charged with DWI or DWAI in a jurisdiction and you’re arraigned in court, your license shall be suspended. However, the arraigning judge may, at his discretion, issue what’s called a hardship license. After a hearing that an attorney would run on your behalf, you may, if the judge finds that it’s an extreme hardship for you, pursuant to the Vehicle and Traffic Law, grant you after a hearing, a license that will be good to drive to and from work only.
What is an aggravated DWI?
Aggravated DWI is a relatively new law in Buffalo. It pertains to drinking and driving. This law pertains to individuals who score, for lack of a better term, a 0.18 or higher on the breath machine. The importance of this law is that it’s a misdemeanor. The penalties are stiffer: a fine ranging from $1,000 to $2500, with a potential one-year jail term and a license revocation of one year.
What is the difference between a felony DWI and a misdemeanor?
In Buffalo, the difference between a felony DWI and a misdemeanor DWI generally boils down to the time of incarceration. A misdemeanor DWI is punished by up to one year in jail, where as felony DWI, which has various levels starting at E level, which is punishable by one and one-third to four years in jail. In order to be charged with a felony DWI, you have to have had a prior misdemeanor conviction within the preceding ten years, or have violated New York State’s Leandra’s Law.
What is Leandra’s Law?
If you were driving with another individual who was 15 years of age or younger when you were arrested for DWI, the Leandra Law escalates that to an automatic felony. This felony is punishable by up to 4 years in jail, and significant monetary fines, including potential jail time, probation and loss of license.
Will I go to jail for a DWI?
If you’re charged and convicted with DWI, there are several factors that a sentencing judge will consider when determining your sentence. One of those things that a sentencing judge may do is to put an individual in jail. It depends entirely on your previous record. Your attorney could certainly conduct a sentencing memorandum with the sentencing judge, where they will sit down together, and put together a biography of who the client is, and why they should not go to jail. Your attorney might base this on the many good and positive things that you have done in an effort to lead a good, law abiding life, and demonstrate that this was an out-of-character experience. Then, hopefully, you will stay out of jail.
Can I lose my job over a DWI?
It is very tricky. Depending on where you work or what your employer’s policies are, you very well could lose your license. I have had clients in the past who have worked for pharmaceutical companies, or trucking companies, or taxi companies who absolutely require a clean license. They require that their employees have a clean license so their liability rates and insurance rates do not go up; however, on the flip side, if you work for an employer that does not require a license, the odds are that you would probably keep your job. However, that is determined on a case-by-case basis.
I always encourage my clients to look at their employee handbook, or if they hire me, I contact the employer on their behalf, which is also tricky because most individuals do not want their employer to know. If you’re held to a different standard such as a Buffalo schoolteacher, a police offer, or an attorney, certain ethical mandates require that you notify your employer.
What is a conditional license? How can I obtain one?
If you’re charged with DWI, there are certain things that you’re going to have to do as required by the Department of Motor Vehicles. This is separate and distinct from the criminal court. This is strictly civil in nature. You are going to have to contact the DMV after a period of time, once your DWI case is concluded, and they will make a determination based on your prior history, whether or not you’re entitled to a conditional license.
If you are, and you haven’t had a DWI within the preceding five years, or completed what’s called the DDP, which stands for the Drinking Driving Program, within the preceding five years after your conviction, you may be eligible. You have to attend a seven-week program held by the Department of Motor Vehicles. You have to complete the course in order to maintain your conditional license. What you are convicted for, whether it’s DWI or DWAI, will determine how long that conditional license will be in place.
What is the Drunk Driving Program?
If you are charged with a DWI, and you are asking an attorney to help you get what’s called a conditional license, which typically takes place after your case is resolved, the DMV requires you to attend a program called DDP. This is a drinking driving program. It is essentially a seven-week program that you sign up for to be given a conditional license. You must complete the program within the allotted time, otherwise they will take away your conditional license.
What is mandatory alcohol assessment?
A lot of folks who are charged with a DWI need to realize that there are certain hoops that they have to go through in addition to merely attending court or the Department of Motor Vehicles. One regulation that is relatively new within the last several years is that individuals are required to go through a mandatory alcohol assessment. This must be done prior to sentencing. Oftentimes certain courts like West Seneca, the judge will present you with a form and require you to go for a mandatory alcohol assessment before the case is over.
What exactly does that mean or entail? It requires that an individual who’s charged with DWAI, driving while intoxicated, whether they blew a 0.15 or less blood alcohol content, refused a chemical test, they must be screened by a Buffalo licensed counselor. That screening requires that they submit to a written standardized test that’s set forth by the Department of Motor Vehicles and that particular counselor and determine if there’s any indication that that person abuses drugs and/or alcohol. If that screening proves that you do, then the second part of that would be to go for an assessment.
That assessment is also required to be done by a licensed professional set forth by what’s commonly known as an OASAS professional. That’s the Office of Alcohol and Substance Abuse Services, which is the department that monitors these individuals so you can’t go and see your friend, Bob, who just got his license. He has to be on the list, get a credible assessment, and forward that to the court within a specific timeframe. If you’re found at that point to abuse alcohol and/or drugs, the sentencing judge is required to have you attend counseling and complete that as a part of the sentencing.
Worried a DWI charge can upend your life? Give John M. Dudziak, a dedicated DWI attorney in Buffalo a call to guide you through this cumbersome process, to get you the results you desire.
