First things first, you should not drink and drive. The best policy is simply don’t do it. The consequences for Driving While Intoxicated (DWI) in the state of New York have become increasingly serious, especially for drivers with CDL licenses, where the collateral penalties are even more severe. That being said, here are some important things to keep in mind:
There are typically two types of evidence used against an individual charged with DWI: (1) the chemical test result and (2) the officer’s observations. The chemical test, usually in the form of a breath test, is used to measure the drivers blood alcohol content (BAC). In New York, a driver with a BAC of .08 or high is considered to be Driving While Intoxicated (DWI). An officer’s observations can take many forms: the actual driving of the car, the driver’s appearance (odor of alcohol, glassy eyes, flushed complexion, slurred speech), and the driver’s ability to perform Field Sobriety Tests (FSTs).
Well, what happens if you refuse? You often hear people talk about refusal of a breath test, but many people don’t realize that you have the absolute right to refuse to take the field sobriety tests as well. Whether or not you are successful in the performance of the FSTs is completely based on the opinion of the police officer. As this is simply the opinion of the officer, and not a bright line rule, it is very easy to “fail” these tests. Maybe you can’t hold your balance long enough, or you inadvertently take too many steps on an imaginary line by the side of the road. By politely refusing to take the FSTs, you will significantly limit the amount of evidence against you at trial. The word politely is emphasized for a reason. It is always the best practice to be as polite and respectful with a police officer as possible.
Keep in mind, however, that the officer will still have the ability make other observations of you. One of the first things asked of a driver when stopped, is to produce license, registration and sometimes proof of insurance. Having these documents readily available is very important. Someone who cannot locate a document, and who has to shuffle through the glove compartment could be seen as uncooperative. Or this disorganization could be seen as a sign of intoxication. So a practical tip is to always have your important vehicle documents in an organized, easily accessible location. Keep your responses to any questions as brief and polite as possible. The more you say, the more opportunity there is for observations to be made.
What about the breath test? Typically, if you refuse the breath test, your license will be revoked for one year. However, CDL licenses are revoked for at least 18 months. If you refuse the breath test you are not entitled to a hardship license (referring to the limited license that allows drivers to drive to and from work/school/medical appointments while the DWI case is pending). Even if you are completely acquitted after trial, if you refuse the breath test, your CDL license will usually continue to be revoked for the remainder of those 18 months. So, while refusing the breath test may lessen the evidence against you at trial, you need to know understand the ramifications from your employer if you are unable to drive for 18 months. Additionally, if you refuse a breath test, your license will be revoked, even for use of a personal (non-work) vehicle.
Another important consideration is to be cognizant of why your vehicle is pulled over. We can all think of some typical reasons cars are pulled over by the police: speeding, going through a red light, failure to use a proper turn signal. But have you ever heard of Drivers view obstructed? Or Dirty plate? All too often, I have seen people pulled over for having an air freshener hanging from their rear view mirror – this is considered “driver’s view obstructed.” The best practice is to remove any and all items from your rear view mirror. Additionally, it can be helpful to complete a vehicle “walk around” every day before leaving home – check to ensure that all lights and signals are in working order and that your license plate is clean.
For CDL holders, DWI is not the only Vehicle and Traffic offense to be concerned with. If a CDL license holder is convicted of leaving the scene of a property damage accident or leaving the scene of a personal injury accident without reporting it, your CDL license will be revoked for at least one year. Additionally, a conviction for any two “serious traffic violations” in any three-year period will result in a 60-day suspension of the CDL license. Serious traffic violations include: Moving from lane unsafely, Following too closely and Reckless Driving.
Please remember to be safe, and don’t drink and drive. If you find yourself in a bad position, and you have been pulled over and accused of drinking and driving, keep these tips in mind: be polite, limit the evidence against you by refusing the field sobriety tests and keeping your responses brief.