Experienced New York City Criminal Defense Attorney Answers Frequently Asked Questions About Criminal Law, DWI and Malicious Prosecution

Below are answers to some of the questions most frequently asked by people seeking information about criminal law, DWI and police misconduct such as false arrest or malicious prosecution. If you have been arrested or otherwise contacted by law enforcement, New York City criminal defense attorney Michael A. Delakas can answer your questions in a free consultation and represent you in dealings with the police, prosecutors or in court. Call 212-321-0232 for assistance or contact us online.

Do I have to take a sobriety test if I get pulled over?

Yes and no. A condition of your privilege to hold a driver’s license is that you have given your consent to a test of your blood alcohol concentration (BAC) if you are pulled over on suspicion of drunk driving. A test of your BAC is usually performed with a breath test, such as a breathalyzer, although a blood or urine test could also be used to determine what intoxicants may be in your bloodstream. If you refuse to take a test of your BAC, you face the loss of your driver’s license for one year and the imposition of a $500 fine. These penalties are in some ways steeper than if you had taken the test and failed it (tested with a BAC of .08% or more).

It is important, however, to understand the difference between a chemical test like a breathalyzer and a field sobriety test, which the police may also ask you to take. Field tests are a battery of tests of your coordination, reflexes and cognition. For example, you may be asked to walk heel-to-toe back and forth along a straight line or to recite the alphabet backwards. Other tests include closing your eyes, tilting your head back and touching your nose with the tip of your finger, or following the movement of a pen across your field of vision without moving your head (the horizontal gaze nystagmus test). These nonscientific tests can be difficult for a number of reasons and do not necessarily mean your driving is impaired, yet they can be used against you in court and can be damaging to your defense of a DWI charge.

While you are required to take a chemical test when the police have cause to pull you over, you are not required by law to submit to a field sobriety test, and it is probably in your best interests to decline to take them.

What is the difference between DWI and DWAI?

DWI stands for Driving While Intoxicated and is in most cases a misdemeanor offense. DWI is the charge applied to driving with a BAC of .08% or greater and is equivalent to the charge of Driving Under the Influence or DUI in other states. DWI can also be charged as a felony in some cases, such as if you have a previous DWI conviction within the past ten years, if you are pulled over with a child 15 years old or younger in the car, or if you cause injury or death while driving.

DWAI stands for Driving While Ability Impaired and can be charged if you test with a BAC between .05% and .07%. DWAI is in most cases a traffic infraction, although it can be charged as a misdemeanor in some instances. Even as an infraction, you could still face a fine up to $500 and have to spend up to 15 days in jail. In addition, you could lose your license for 90 days as well as have points added to your license, which could lead to a later license suspension or revocation. Also, as an infraction, DWAI is easier to prove and harder to defend than a DWI charge, so it is important to take even a DWAI charge seriously and retain skilled and knowledgeable legal representation.

Do the police have to have a warrant to search or arrest me?

In general, the U.S. Constitution, through the Fourth Amendment in the Bill of Rights, requires the police to have probable cause to believe you are guilty of a crime before they can search or arrest you. Having a warrant generally satisfies this requirement, but the Supreme Court has also recognized many instances where a warrant is not required to conduct a valid search or arrest. While the law in this area is complex, what is important for you to know is if the police say they are going to conduct a search or arrest you, you should not resist or obstruct them. If their conduct is improper, your attorney will argue to have any evidence suppressed or have the charges dropped. On the other hand, if the police ask your permission to search or ask you to come to the station voluntarily to answer questions, you are within your rights to refuse and should probably do so. The police can search without cause or question you if you give them your consent, but there is no good reason to do this. Even if you have nothing to hide, the police may still uncover evidence or statements they can use against you.

There are also some situations when police can stop and question you without probable cause, so long as they can articulate a reasonable suspicion that you may be involved in criminal activity. When the police stop you for this brief questioning, they are also allowed to conduct a quick pat down of your outer clothing to check you for weapons for their own safety. Of course, this search may also turn up other evidence of criminal activity which can lead to an arrest. New York City’s policy of “stop, question and frisk” has come under fire for racial profiling and other civil rights violations and is in the process of being revised. In the meantime, if you have been arrested on the basis of a questionable stop, you should definitely contact a New York City criminal defense lawyer who understands police procedure and can help determine if your rights were violated.

What is malicious prosecution?

Malicious prosecution means that the prosecution of a person was undertaken based on bad faith or improper motives. A victim of malicious prosecution can sue the state for money damages. In order to be successful in a case of malicious prosecution, the plaintiff must prove that a criminal proceeding was initiated without probable cause and terminated in favor of the accused, such as by a dismissal of charges, an acquittal or a verdict of not guilty.

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