One of the most successful statutory procedures used in DWI cases is automatic license suspension for those drivers who either refuse a chemical test for DWI or who take the test and score above the legal limit. In many states, the refusal or failure allows a police officer to seize the license of the driver and issue a temporary one that automatically expires in a specified number of days. In New York, a suspected DWI offender’s driver’s license may be suspended pending prosecution for 30 days. Upon the conclusion of 30 days, the suspected offender may obtain a pre-conviction conditional license provided they are otherwise eligible to receive one from the Department of Motor Vehicles. In addition to the suspension of their driver’s license, the suspected DWI offender is also subject to a criminal prosecution for drunk driving. Many DWI defense attorneys argue that the combination of a license suspension followed by a criminal prosecution violates the Fifth Amendment prohibition on double jeopardy. Many DWI defense attorneys argue that their clients are being punished twice for the same crime by having to go through administrative license suspension proceedings and a subsequent criminal DWI trial.

The prohibition against double jeopardy prohibits multiple punishments for the same offense. Therefore, many DWI defense attorneys argue that the administrative and criminal matters are separate proceedings, that the two proceedings stem from the same offense, and that the suspension of a driver’s license is a form of punishment. The Fifth Amendment to the United States Constitution states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.”

Many DWI defense attorneys who rely on the double jeopardy argument use several Supreme Court cases for their defense purposes. In 1989, the Court decided United States v. Halper, and ruled for the first time that a civil penalty could be considered punishment for double jeopardy purposes. Since Halper, the Court has decided another case relating to double jeopardy, Department of Revenue v. Kurth Ranch. In this case, the Court held that a civil drug tax violated the double jeopardy prohibition when imposed along with a criminal prosecution for the same offense.

Defense attorneys argue that the administrative “penalties” in the Kurth Ranch case are similar to license sanctions taken against DWI offenders pursuant to implied consent laws. These attorneys base their arguments on the fact that the three elements needed to establish a double jeopardy violation are present in DWI cases since the license suspension and criminal prosecution 1) are imposed in separate hearings, 2) constitute punishment and 3) arise from the same offense.

In using the double jeopardy defense, DWI defense attorneys argue that the administrative hearing is separate from the criminal proceeding in DWI cases, and that it therefore violates the driver’s right to be tried only once for the same crime. This is because the administrative license suspension hearing often is conducted before a separate official (not the judge in the criminal proceeding), at a different time and in a separate forum than the criminal DWI trial.

Many DWI defense attorneys using this defense argue that the administrative license suspension is, at least in part, a punishment and is not strictly remedial. They argue that it is difficult to look at administrative license suspension as anything but administrative punishment and as a deterrent to other drivers who might not comply with the implied consent law. DWI defense attorneys using this defense also argue that double jeopardy applies in these cases because the penalties arise from the same offense. They argue that the administrative license suspension and criminal trial arise out of the same original traffic stop and arrest for a suspected DWI and this violates the third double jeopardy protection, the prohibition against multiple “punishments” for the same crime.

The attorneys at the law firm of Anelli Xavier are experienced in handling DWI cases. If you need a lawyer who can help you obtain the best possible outcome in your DWI case, call the law firm of Anelli Xavier. The firm’s Buffalo office can be reached at: (716) 541-3943

What constitutes the crime of DWI (Driving While Intoxicated) is the operation of a vehicle and the nature or extent of impairment from an intoxicating substance. Prosecutors regard DWI cases that involve the death of a victim more seriously than standard DWI cases. If the incident is very serious, it may be prosecuted as vehicular manslaughter, rather than as a typical DWI case. Vehicular manslaughter cases are different from other cases in that the crime does not involve intent on the part of the defendant. The driver involved did not intend to commit a homicide, and while in other contexts the death would be considered accidental, in DWI cases, the use of an intoxicant increases the level of punishment.

In most vehicular manslaughter cases, all that is needed to prove that a driver is guilty is a showing that (1) a death occurred; (2) the death resulted from the operation of a vehicle by the defendant; and (3) that the defendant was under the influence of alcohol to the extent that their normal faculties were impaired, or they had a blood alcohol level at or above the state’s legal limit at the time they operated the vehicle.

An essential element of a vehicular manslaughter charge that must be established by the prosecution is that the defendant was not, at the time of the accident, in possession of their faculties due to the use of an intoxicant. If a driver, under the influence of alcohol knows or reasonably should know that his conduct is likely to injure others, and his conduct amounts to reckless or wanton or gross negligence, and as a further result of that conduct, he killed someone, he may be convicted of vehicular manslaughter. The rationale for the vehicular manslaughter charge is that the common law presumes that the driver intends the “natural and probable consequences of his acts.” As a result, the intoxicated driver is aware, or should be aware, of what will result from his conduct of driving an automobile while under the influence of intoxicating liquor or drugs.

In New York, in order to prove a case of vehicular manslaughter, the prosecution must show that the defendant, acting with felonious negligence, caused the death of another by operating a vehicle while intoxicated. A person acts with felonious negligence when they fail to perceive a substantial and unjustifiable risk to someone else and that failure constitutes a gross deviation from the normal standard of care. In New York, vehicular manslaughter in the 2nd degree (New York Penal Code Section 125.12) is a Class D felony, and carries a penalty of not more than 7 years in prison and/or not more than a $5,000 fine. Vehicular manslaughter in the 1st degree (New York Penal Code Section 125.13) is a Class C felony and carries a penalty of not more than 15 years in prison and/or not more than a $15,000 fine. Read more »

The State of New York recognizes the offense of DWAI Drugs (Driving While Ability Impaired By Drugs). A DWAI Drugs conviction results in a misdemeanour charge, with fines that may amount to anywhere between $1000 and $2000. For first-time DWAI Drugs offenders, there is also a penalty of having their driver’s license revoked for a period of 6 months. A second DWAI Drugs arrest within 10 years may result in a felony charge.

Many DWAI Drugs cases involve Drug Recognition Experts. The Drug Recognition Expert program was conceived in the City of Los Angeles in the early 1970s. Drug Recognition Experts are police officers or state troopers trained to recognize impairment in drivers under the influence of drugs other than, or in addition to, alcohol. Drug Recognition Experts follow a standardized protocol for examining a motorist suspected of driving under the influence of drugs to determine (1) whether or not the suspect is impaired; and if so, (2) whether the impairment relates to drugs or a medical condition; and if drugs are involved, (3) what category or combination of categories of drugs are the likely cause of the impairment.

Drug Recognition Experts are highly trained and most must become certified as Drug Recognition Experts. The training usually involves classroom training as well as on-the-job training. Drug Recognition Experts usually take a course on drug categories and on signs and symptoms that those drug categories produce both alone and in combination with every other drug category. In New York, there is a Drug Evaluation and Classification Program for police officers that formally trains Drug Recognition Experts.

In the case of People v. Quinn, the court considered a case where a New York driver was suspected of driving under the influence of cocaine. The arresting officer in the case was a state trooper who had received over 72 hours of training as drug recognition expert. The court held that the trooper was allowed to testify as a Drug Recognition Expert and give his observations and opinions made while testing the defendant that she was impaired by cocaine while she was driving. The court held that Drug Recognition Expert (DRE) protocol was generally accepted as reliable by the scientific community, and that this testimony could be admitted as scientific evidence in prosecutions for operating a motor vehicle while under the influence of drugs. Read more »

Almost all DWI offenders convicted of impaired driving are ordered to abstain from consuming alcohol as a condition of sentencing or probation. In 2006, the New York 8th Judicial District Hybrid DWI Court in Buffalo began using a high-tech, transdermal alcohol monitoring program in DWI cases. Prior to using the new program, the 8th Judicial District used random testing for alcohol consumption by offenders and that procedure proved inadequate in DWI cases. Under the old procedure, DWI offenders weren’t allowed in drug courts because the courts didn’t have a reliable mechanism for testing for alcohol. The transdermal apparatus, Scramx transdermal system, is manufactured by Alcohol Monitoring Systems.

The transdermal monitoring system continuously monitors indicators of alcohol use, tracks an offender’s exact location and delivers this information to public safety officials in real-time. The system uses GPS location-based monitoring technology and continuous alcohol detection capabilities. Alcohol and GPS alerts occur instantly via Bluetooth and cellular-based technology, allowing public safety officials to respond quickly to violations by DWI offenders. The transdermal monitoring system works by distinguishing episodes and severity of alcohol consumption of DWI offenders on a continuous and ongoing basis through comparison to a sober baseline established at enrollment in the system.

One of the main features of this system is its ability to verify a DWI offender’s compliance with court orders for alcohol abstinence over a given period. Transdermal alcohol monitoring generally includes an anklet, worn seven days a week for twenty-four hours a day that tests for the presence of alcohol every 30 minutes by sampling the insensible perspiration constantly given off by the skin of the offender. The tamperproof bracelet monitors and measures ethanol gas emitted through the skin of the DWI offender on a continuous basis using a test chamber where ethanol molecules released from the skin accumulate. Measurements taken from the chamber are stored in the bracelet and simultaneously transmitted to monitoring center computers via a GPS cell phone. Read more »

As Buffalo DWI attorneys, we watch the news closely for DWI cases and associated rulings that could have some impact on legislation, as well as our defense strategies. We recently noticed a case that has led to much outrage, especially in the aftermath of the February ruling of Supreme Court Justice Michael Gary. Julio Acevedo killed a Brooklyn couple and their unborn child while they were on their way to the hospital due to complications with the pregnancy. Acevedo’s BAC registered 0.13 percent, .05% higher than the legal limit. Despite his arrest and incarceration, Justice Gary made a shocking ruling in February.

As of September 2012, major crackdowns in New York DWI laws have led to harsher punishments for convicted offenders, including the mandatory loss of driving privileges and more difficulty in reinstating those privileges, especially if you are trying to reinstate earlier than the original sentence allows. (This practice was formerly allowed if an offender completed the DMV’s drunk driving course.) Further, repeat offenders could expect the possibility of permanent driver’s license revocation. Despite the mandatory revocation laws, which apply to Acevedo’s case, Justice Gary refused not only to set bail, but also refused to revoke Acevedo’s license. Read more »