dui Archives - David M. Mirsky Law Office

How Does New York Address DUIs with Minors in the Vehicle?

What Does the Law Say About Drunk Driving with a Child in the Car?

Being arrested and charged for driving while intoxicated (DWI) can result in severe penalties under Leandra Law. Possible punishments are fines, probation, surcharges, DMV fees, and jail time. The situation becomes worse when you’re charged with a DWI while a child is in the car. You can be charged with a felony for committing a DWI with a child below 16 years in the vehicle.

The law gets its name from Leandra Rosado, an 11-year-old who was killed in a drunk driving accident. First-time offenders can face Class E felony, with a possible sentence of 4 years in prison upon conviction. A skilled Long Island criminal justice attorney who understands that mistakes can happen can provide legal representation to help you beat the charges.

How Do I Get a DWI in New York?

You can face charges for a DWI or DUI if caught driving after consuming drugs or alcohol. If law enforcers find you with a blood BAC of 0.08% or higher, they will charge you with a DWI. You can also face charges for driving while ability impaired (DWAI) if police officers determine you were driving under the influence of drugs.

What Are the Penalties for DWI with a Minor in the Car?

While a DWI with a minor in the car is a Class E felony with a minimum of four years in prison, the sentences can differ depending on a combination of factors. You could face a Class C felony charge if you got into an accident and the child sustained severe physical injuries. Depending on the circumstances, possible penalties can include:

A mandatory one-year revocation of your driver’s license
Mandatory installation of ignition interlock device
A fine of between $1,000 and $10,0000
A term of 5 years on probation
Attending a Victim Impact Panel
A court-ordered surcharge of $520 and a three-year DMV assessment totaling $750

If you were involved in an accident and the child was killed, you risk facing 15-25 years in prison. Defending against DWI charges where a minor is involved can be complex, given that you can face additional charges for endangering a child’s welfare. Consider retaining aggressive lawyers from a Long Island DWI and DUI defense law firm to defend you against the charges.

What Is Endangering the Welfare of a Child?

Parents, guardians, and those entrusted to care for children have a legal responsibility to ensure the minors don’t come into harm. A person who fails to protect a child may face criminal charges for endangering the welfare of a child.
Under Penal Law § 260.10, you can be found guilty of endangering a child’s welfare if you:

Intentionally act in a manner likely to harm a child aged 16 or younger physically, mentally, or morally
Direct or authorize a child 16 or younger to engage in an occupation involving substantial danger to their health
Fail or refuse to exercise reasonable care in the control of a child aged 17 or younger to protect them from abuse, neglect, or juvenile delinquency that requires supervision.
Deal with a child unlawfully.
Abandon or neglect a child.

Being charged with a DWI with a child in the car falls under the first category of endangering a child. If facing separate charges in addition to the DWI offense, you could be charged with a Class A misdemeanor, which attracts punishment of up to 364 days in jail upon conviction.
Alternatively, you could be subjected to three years of supervised probation or up to a one-year Conditional Discharge. Fines and mandatory surcharges are also applicable. Lawyers can help you defend yourself against the charges to protect your constitutional rights.

How Can I Defend Myself Against a DWI with a Minor Charge?

Defending yourself against a DWI with a minor in the car depends on the evidence and allegations in your case. Lawyers from a reputable DWI and DUI defense law firm, Long Island, can evaluate your case and determine the best strategy to use in defending. Some aspects they can investigate include the following:

Did the police inform you of your rights when arresting you?
Did the police arrest you on probable cause, and can you challenge it?
Did the police advise you on what could happen if you don’t submit to a chemical test to determine your BAC?
Were you adequately advised of your rights when you made a statement?
Were you operating the car or merely resting with the child in the car?
Is there any evidence that shows you refused to take sobriety tests?

There are plenty of avenues experienced and knowledgeable attorneys from a Long Island DWI and DUI defense law firm can explore in creating a defense strategy if they know what to look for and where to look.

An Experienced Criminal Defense Lawyer Helping You Fight DWI Charges

Leandra’s Law has provisions for steep penalties for people charged with driving while intoxicated with a minor in the vehicle. You risk up to 25 years in jail if the child dies in a crash and various other harsh penalties, depending on the case circumstances. Retaining criminal justice attorneys in Long Island is something you should consider to defend your rights and freedom.

Good people make bad decisions that sometimes land them on the wrong side of the law. If you or your loved one is facing charges for a DWI with a minor in the car, don’t lose hope. The Mirsky Law Firm has aggressive DWI and DUI lawyers who can help you beat the charges. Call us at 516-774-1811 or 718-412-8322 to schedule a FREE consultation.

By David Mirsky|Blog, Criminal Law, criminal lawyer, dui|Comments Off

What Are DUI Laws in New York?

DUI laws in New York are complex, and a conviction can attract hefty penalties. Even if you’re not part of an auto accident, you can face severe penalties if a police officer finds you driving under the influence. Your duty as a responsible citizen is to avoid driving after drinking alcohol or using drugs.

However, you might still find yourself on the wrong side of the law for various reasons. If you’re arrested for a DUI, criminal defense lawyers in Long Island advise that you don’t resist the arrest, but instead, do the following:

Pull over
Be calm
Remain polite
Only provide minimal information
Only take a sobriety test at the police station
Record everything you can remember
Hire a DUI attorney to help you fight the charges

How Can I Defend Myself Against DUI Charges?

Skilled attorneys from a Long Island DWI and DUI defense law firm can provide legal counsel on the approaches to challenge DUI charges in New York. While some are pre-trial defenses you can use in a hearing before trial, others are trial defenses you bring up to the jury at trial.

The Police Pulled Me Over for No Reason

Under the Fourth Amendment, the police must have a valid reason for pulling you over. If you believe the police didn’t have a good reason to arrest you, you can legally challenge the stop. If your attorney successfully shows why the stop was illegal, the court will dismiss all other evidence against you.

A police officer must have a reasonable belief that you have committed, are committing, or about to commit a crime, in this case, driving under the influence. Alternatively, they must demonstrate probable cause that you committed a traffic violation.

Breathalyzer Test Inaccuracy

DUI breath tests are the most common way to test blood alcohol concentration (BAC). However, the tests are not always accurate as they measure the breath alcohol and multiply it by a “partition ratio” to estimate the BAC. The devices assume a ratio of 1:2100 of alcohol in the exhaled breath to alcohol in the blood.

The ratio can sometimes be higher depending on sex, body weight, temperature, and breathing patterns. The device’s margin error, improper calibration, and poor police maintenance of the breathalyzer device can also give a false impression of your BAC. Skilled DWI and DUI lawyers serving in Nassau County and Suffolk County can use these arguments to defend you.

Showing a DUI Test Refusal Charge is Wrong

If the police ask you to take a breath test at the side of the road after pulling you over, you have a right to refuse to take the test. However, refusing to take the test has the risk of being charged with a refusal offense. Refusing a breath test is not a crime if you have a valid medical excuse.

There are several reasonable excuses you could use as a defense to refuse the test, which is why the specific details of your arrest are crucial in fighting and winning a DUI charge. For example, some medical conditions can make it difficult to exhale with force or in the methods required for the breathalyzer device.

Experienced lawyers from a reputable DWI and DUI defense law firm in Long Island can analyze the details of your arrest and find that the refusal offense charge was not valid. With the strict requirements for the portable roadside breath test device and the larger breathalyzer machine at the station, your lawyers can find loopholes to use in your defense to invalidate the charge.

A Police Officer’s Failure to Read Your Miranda Rights

You’re entitled to Miranda Rights, the warnings that police officers issue upon arresting someone and when they’re about to question them. Without a Miranda warning, nothing you say in response to an officer’s questioning can be used against you as evidence in court.

Additionally, if the police obtain any evidence because of questioning you after violating the Miranda rules, the collected evidence shall not be allowed in court. This is based on the principle is the fruit of the poisonous tree, and your DUI defense attorney can fight to keep everything you said out of court.

Inaccurate Field Sobriety Test

If the police bring a DUI charge against you, claiming that you failed a field sobriety test, you can challenge the charge based on the test results. If you have ever taken a field sobriety test, you know how hard it can be to pass, even when sober, leave alone when intoxicated.

Your Long Island DWI and DUI defense lawyers can quote the following as reasons for innocent test failures:

Poor balance
Shoes or clothes that interfered with the tests
Bad lighting or uneven surface conditions
Poor coordination or non-athleticism
Police intimidation

DUI with No Proof of Driving

DUI laws in New York allow police officers to arrest you for DUI if they find you with a BAC level above the legal limit, even if you were not driving at the time of the arrest. However, you can challenge the charge by saying you were not driving when you were arrested and had no intention to drive.

The argument could especially be helpful if you were in the passenger’s seat and the car keys were not in the ignition. The burden of proof would lie with the prosecutor as they would be required to show the validity of the DUI charge. Aggressive criminal defense attorneys in Long Island can fight to get you off the charges if there’s no proof you were caught driving.

Skillfully Challenge Your DUI Charge With the Help of a Legal Professional

Fighting DUI charges in New York requires the skill and experience of an aggressive lawyer from a DWI and DUI defense law firm in Long Island. DUI laws are strict, and a conviction could expose you to hefty fines and possible jail time, depending on the severity of the charge.

Let our DUI and DWI defense lawyers provide the legal counsel and representation you need during this challenging time. Your past mistakes should not define your future, and we can fight for the most favorable outcome in your case. Contact the Mirsky Law Firm at 516-299-6187 or 718-412-8322 to schedule a case assessment.

By David Mirsky|Blog, criminal lawyer, dui|Comments Off

Can I Refuse a Breathalyzer Test in New York?

If there is one question that comes up over and over again the closer it gets to New Years Eve, it is whether or not you can refuse a breathalyzer test in the state of New York. Everybody wants to celebrate but getting stopped for a DUI puts a damper on people’s moods really quickly.

It might seem like a good idea to refuse a breathalyzer test if you are worried about blowing over the legal limit but this is almost never a good idea. Can you refuse a breathalyzer test? Yes, you can. But should you? Almost universally the answer is no. Here’s why.

What Happens if I Refuse to Take a Breathalyzer Test?

Refusing to take a breathalyzer test is almost always seen as an admission of guilt to being over the legal limit while driving. This means that you will still likely be charged with a DUI/DWI for refusing the test. Therefore, refusing the test doesn’t eliminate the chances that you’ll get away with being intoxicated behind the wheel. But what refusing a breathalyzer test will do is open you up for more consequences.

New York has an implied consent law. This basically means that if you are driving on a public road then you must agree to take a breathalyzer test in cases where law enforcement has reasonable suspicion to believe you are intoxicated.

Refusing a breathalyzer test will result in a fine of $500. Refusing a breathalyzer also results in an automatic suspension of your license for up to a year. Since refusing a breathalyzer gives law enforcement reason to charge you with a DWI/DUI, some people assume that if they can get off from the DUI then they can get their license back. But the fine and the suspension are separate from the charge and so they remain even if the charges are dropped.

Normally in a DUI case there is the possibility of getting a conditional license. This is a license that allows you to drive to and from work. Conditional licenses are a way for people to keep their jobs despite their charges and they can really be the difference between an uncomfortable outcome and one that completely ruptures your life.

But if you refuse to blow a breathalyzer test then you are not allowed to get a conditional license in relation to your case. So refusing to blow results in a fine and it removes your ability to get a conditional license. It also is a fact of the case which can be told to the jury and so any attorney will tell you that refusing a breathalyzer test does not look good in court.

What are the Positives to Taking a Breathalyzer Test?

Taking a breathalyzer test is almost always the best choice of action when you’re asked to blow one. One solid reason for this is that blowing the test provides less evidence to your intoxication than you might think. People are often afraid to blow the test when they’ve only had a couple drinks. They believe that refusing to blow the test is in their best interest because if they fail the test then they’re going to be unable to get out of a DUI.

But refusing to blow the test doesn’t eliminate the DUI. As mentioned above, refusing the test is mostly seen as an admission of guilt. So refusing alone often ends in the result that you were trying to avoid. Add to this that law enforcement can also testify to your physical appearance and behavior (such as your reckless driving) during the traffic stop and you have very little to gain by refusing to blow the test.

But if you’ve only had a couple of drinks then there are some positives to blowing a breathalyzer test. For one, blowing the test looks good in the eyes of a jury. It shows that you were willing to take the test and this implies that you personally believed yourself to be within the legal limit. This helps to give your choice to get behind the wheel less of a stigma to it.

Breathalyzer tests aren’t infallible, either. In fact, it is common knowledge that the alcohol content in mouthwash can be enough to fail a breathalyzer test if you’ve used it within a short period of time before blowing. With tests being so sensitive and prone to variation it can be easy to challenge a breathalyzer test that only failed by a small margin. Challenges of this nature often see a lower plea accepted or even the case being dismissed.

Is There Ever a Time when I Shouldn’t Take a Breathalyzer Test?

The only time when it makes sense to refuse a breathalyzer is when you are completely and utterly intoxicated. If you are at risk of blowing more than .18 then you should refuse a breathalyzer because the result could be that you are charged with aggravated driving while intoxicated, a worse charge than what you would otherwise get for driving while intoxicated.

However, it should go without saying that if you are intoxicated enough to be at risk of getting an aggravated driving while intoxicated charge if you blow a breathalyzer test then you shouldn’t be behind the wheel of a vehicle. The best way to avoid the consequences of driving under the influence or refusing to blow a breathalyzer is to not put yourself in the position to have to blow one in the first place.

I Refused a Breathalyzer Test, What Should I Do Next?c

Chances are that by refusing to blow a breathalyzer test you still found yourself having to deal with the consequences of driving while intoxicated. Your refusal to blow is going to make your case look worse than if you did so it’s even more important than ever that you hire an experienced attorney to help you with your case.

Here at Mirsky Law Firm we pride ourselves on our experience and our knowledgeable attorneys are always ready to help defend you in cases like this. Give us a call at (516) 299-6187 to see what steps can be taken to minimize the consequences of your refusal to blow a breathalyzer test.

By David Mirsky|dui|Comments Off

A Dangerous Combination

Driving while intoxicated in New York means you’ve been drinking alcohol, smoking marijuana or taking prescription drugs. The consequences are the same if you’re convicted, and those consequences can be quite harsh. If you receive a charge with driving while intoxicated in New York City or in Long Island, it’s critical to contact a knowledgeable drug defense lawyer in Long Island as soon as you can.

Marijuana and DWI

While a growing number of states are liberalizing their marijuana laws, concern is also growing across the nation about drivers who mix marijuana and alcohol. Some new research findings from Europe are causing even more apprehensions.

There is simply no question or debate – smoking pot and drinking alcohol together does far more damage to your driving ability than simply consuming either substance exclusively. That’s what researchers in the Netherlands at Maastricht University found when they tested a number of volunteers. When alcohol is combined with marijuana, and even when a driver’s blood alcohol content level is measurably under the legal limit, driving ability is substantially impaired, and a driver’s driving behavior resembles the driving pattern of someone significantly over the legal limit. Combining even small quantities of the two drugs together essentially destroys your ability to drive a vehicle safely.

Prescriptions and DWI

in New York state, if you are arrested and accused of driving while intoxicated, immediately take your case to a well-known and knowledgeable Long Island criminal defense attorney. Understand, however, that a second DWI conviction within ten years of the first is a Class E felony in New York, and if you are convicted, the penalties will a fine from $1,000 to $5,000 and ten days in jail or sixty hours of community service. If you’ve been convicted of DWI more than four or five times, you may be struggling with a dependency issue, and you should probably seek some counseling. Almost anyone can avoid DWI troubles by quitting alcohol. Drivers who don’t drink alcohol do not get charged with DWI – usually.

However, if you are using pharmaceuticals prescribed by your doctor, DWI can get complicated. You can’t just “quit” your prescription medication like you can quit drinking. Your medicine is keeping you healthy, but you probably should not drive while you’re taking it. Many prescription and over-the-counter medicines can impair your ability to drive. Driving while taking these medications could get you charged with DWI. You could be responsible for a collision, serious injuries, and even fatalities.

If your physician has prescribed medications for you or prescribes them in the future, ask the doctor to describe how the drugs will affect you. Always heed the warning labels that accompany medications. If you receive an accusation of a prescription drug-related DWI New York state, it’s like every other DWI charge. Keep in mind that you do have a right to remain silent. Additionally, you have the right to consult an attorney before answering any questions. If you’re charged with a DWI in Long Island, or even in any one of the five boroughs, obtain legal help at once. Let an experienced DWI defense attorney in Long Island represent you and fight on your behalf. After any New York DWI arrest, make the call immediately.

What To Do If You’re Stopped for DWI

If you are pulled over by law enforcement officers in New York City or Long Island because you are suspected of DWI, remain silent and do not consent to a search of your vehicle. You don’t ever have to consent to an unwarranted search; however, if a cop does, in fact, have a search warrant, you have to cooperate with the search. If the cops want to do a search without a warrant, be sure to insist on a warrant, but remain polite at all times when communicating with the police officer. A cop doesn’t have the right to detain you unless they have a strong suspicion that you committed a traffic violation or crime. Whenever you have doubt, ask the police officer if you are free to leave.

If you are arrested for marijuana-DWI, you’ll need an experienced DWI defense attorney in Long Island who can represent you aggressively while advocating for the best possible result. Even in first-offense, marijuana-DWI cases, New York courts are seldom lenient. Don’t plead guilty – fight the charge. If you are faced with a DWI charge for any reason in the Mineola, Nassau County, Suffolk County area, or anywhere in New York City, contact a knowledgeable Long Island DWI defense attorney promptly.

By David Mirsky|Blog, dui, dwi|Comments Off

Ignition Interlock Devices

If you’re convicted of driving while intoxicated in New York, you’ll have to become familiar with an ignition interlock device (IID). Since 2009, New York has required drivers convicted of DWI to install an IID in any vehicles they own or operate. At sentencing, offenders have to provide information about any vehicles they own or else verify that they own no vehicle. The IID will cost you money, although financial assistance is available for low-income drivers by filing a “financial disclosure report” through New York’s Division of Criminal Justice Services. Of course, if you’re charged with DWI, you want to avoid being convicted if that’s possible. If you face a DWI charge anywhere in the Long Island or New York City area, get legal help immediately by consulting with an experienced Long Island DWI attorney.

IIDs are intended to prevent alcohol-impaired driving. If an IID detects what it takes to be alcohol on a driver’s breath, the vehicle will not start. The IID transmits information to the IID provider, and it’s then turned over to probation authorities. You could find yourself re-sentenced to probation or to jail.

LifeSafer, a company that installs and maintains IIDs, admits that regular, over-the-counter mouthwash can cause a breath test failure with some of the devices. Mouthwash isn’t the only item that an IID can register as booze. Toothpastes, cough syrups, and even some food products can result in a false reading. To avoid this, always rinse your mouth with water before blowing into the device.

In the end, there’s probably no way that every risky driver can always, reliably be prevented from driving. An alternative and perhaps more worthwhile approach is to make every new car “DWI-proof.” DWI-proof cars have actually been in development since 2008, and the federal government believes that by 2020, these vehicles will be available for everyone. In June, the Department of Transportation put two “DWI-proofing” technologies on display for television and newspaper reporters. A “touch-based” system gauges a driver’s blood alcohol content level by scanning just under the skin of the driver’s fingers. A “breath-based” system basically fits a vehicle with interlock ignition device technology and requires a driver to “blow” before the vehicle will start.

Of course, the better way to avoid it is not to be charged with DWI in the first place. If you drive, don’t drink, and if you drink, designate a driver, call a taxi, or find another way. While there’s no doubt that technology can reduce traffic accident injuries and fatalities – seat belts and airbags prove that – the future isn’t here quite yet. If you’re charged with DWI anywhere in or near New York City, you’ll need to obtain the services of an experienced Long Island criminal defense attorney immediately. A good DWI defense lawyer will help you gather evidence and witnesses, dispute test results, and work aggressively to bring your case to the best possible resolution. A Long Island DWI lawyer can help you get justice, but you must take the first step and make the call.

By David Mirsky|dui, dwi|Comments Off

If You Think New York Is Tough…

Driving while intoxicated (DUI ) is a serious crime in New York, and if you’re convicted, the legal and personal consequences can be severe. The wisest way to avoid DUI trouble is to avoid drinking and driving altogether. Call a cab, designate a driver, or just abstain. Although sentences can be tough, a DWI arrest doesn’t automatically mean a conviction; good DWI lawyers in New York win cases for their clients in a variety of ways. If you face a DWI charge anywhere in the Queens area, obtain legal help from an experienced criminal defense attorney immediately.

While you definitely do not want to be convicted of DUI in New York, this state’s DUI penalties are quite lenient when compared against other nation’s DUI laws. Your first DUI offense in El Salvador, for example, is your last. You’ll be taken before a firing squad. Bulgaria is better; they don’t execute you until you receive a second DWI conviction. South Africa incarcerates you for ten years for a first offense and fines you $10,000. France confiscates your car after your first DWI conviction and takes your license for three years. Finland and Sweden send DWI first offenders to a year at hard labor. Russia revokes your license permanently, but Norway doesn’t permanently revoke your license until your second DWI conviction. In Sweden, your fine depends upon how much you have in the bank, and if you have no money, they take your car.

If you’re charged with DWI in New York City or anywhere in Queens, it’s a criminal offense, and you’ll need the help of a good Queens DUI lawyer. It’s more or less the same in every state except one. Wisconsin is still the only state where a first offense for driving while intoxicated (DWI) or under the influence (DUI) is not a criminal charge. In Wisconsin, the first offense is called “operating while intoxicated” or “OWI,” and offenders are issued merely a citation. An OWI in Wisconsin is punishable by a fine of $150 to $300 and a possible, brief license suspension, but no jail time. Additionally, Wisconsin is the only state with a law that explicitly prohibits law enforcement agencies from conducting sobriety checkpoints. That situation may not last long, however, as Wisconsin has become the target of increasing criticism from health experts, legislators, and victims’ rights lobbyists.

In the state of New York, DUI is always treated as a crime. In fact, the trend in New York for several years has been less lenience in first-offense DWI cases, so if you (or your teenager) face this charge, don’t anticipate a “slap on the wrist” just because it’s a first offense. In the New York City and Queens areas, you’ll need the help of an experienced Queens DUI attorney who can look at the specifics of your case, explain your options, and work on your behalf for justice. Even if it’s “only” a first offense, if you face any DWI charge in New York, speak with an experienced Queens DWI lawyer as quickly as possible.