Recently, Dennis Nave of Anelli Xavier gave a presentation on DWI Defense and Criminal Law to the undergraduate Law and Public Policy class of about fifty students at the Whitman School of Management at Syracuse University.

1. The Basics of DWIThe Basics of DWI
DefenseDefense
By:Dennis Nave, Esq.

2. “No person shall operate a motor
vehicle while in an intoxicated
condition.”
What are the elements that the
government needs to prove beyond a
reasonable doubt to convict?
VTL §1192(3):
“Driving While Intoxicated”

3. The StopThe Stop
 Parked CarParked Car
 Citizen Complaint/Anonymous TipCitizen Complaint/Anonymous Tip
 Traffic InfractionTraffic Infraction
 AccidentAccident
 Checkpoint – Specific RulesCheckpoint – Specific Rules
 https://www.youtube.com/watch?v=YqEXTVe7https://www.youtube.com/watch?v=YqEXTVe7

4. Elements of a DWIElements of a DWI
 Operation or IntentOperation or Intent
 Motor VehicleMotor Vehicle
 Intoxicated ConditionIntoxicated Condition
 Public HighwayPublic Highway

5. Field Sobriety TestsField Sobriety Tests
StandardizedStandardized
 Horizontal Gaze Nystagmus (HGN)Horizontal Gaze Nystagmus (HGN)
 Walk and TurnWalk and Turn
 One Leg StandOne Leg Stand

6. Field Sobriety TestsField Sobriety Tests
 Finger to NoseFinger to Nose
 RhombergRhomberg
 Finger CountFinger Count
 AlphabetAlphabet
 CountingCounting
 Pre-Screen Breath Test (PBT)Pre-Screen Breath Test (PBT)

7. Miranda WarningsMiranda Warnings

8. DWI Refusal WarningsDWI Refusal Warnings
1. You are under arrest for driving while intoxicated.
2. A refusal to submit to a chemical test, or any portion thereof, will
result in the immediate suspension and subsequent revocation of
your license or operating privilege, whether or not you are found
guilty of the charge for which you are arrested.
3. Your refusal to submit to a chemical test, or any portion thereof,
can be introduced into evidence against you at any trial,
proceeding, or hearing resulting from this arrest.
4. Will you submit to a chemical test to determine the alcohol or drug
content of your blood?

9. The BreathalyzerThe Breathalyzer
 How Does it Work?How Does it Work?
 20-Minute20-Minute
Observation PeriodObservation Period
 What Causes it toWhat Causes it to
Render an InaccurateRender an Inaccurate
Result?Result?
 Mouth AlcoholMouth Alcohol
 Other substancesOther substances
with a similarwith a similar
molecular structuremolecular structure

10. Blood TestBlood Test
 Proper ProcedureProper Procedure
 Examining the ChartsExamining the Charts

11. Pros and Cons of RefusingPros and Cons of Refusing
ProsPros
 No scientific evidence ofNo scientific evidence of
your blood alcoholyour blood alcohol
contentcontent “BAC” exists for“BAC” exists for
your criminal caseyour criminal case
 Potentially one lessPotentially one less
misdemeanor chargemisdemeanor charge
ConsCons
 If you lose your DMVIf you lose your DMV
refusal hearing, you willrefusal hearing, you will
lose your license for onelose your license for one
year, regardless ofyear, regardless of
whether you arewhether you are
convictedconvicted
 Potential to adverselyPotential to adversely
affect plea negotiationsaffect plea negotiations
with the District Attorneywith the District Attorney

12. OffensesOffenses
DWAI (Violation)DWAI (Violation)
 Operating while ability to drive is impaired to ANYOperating while ability to drive is impaired to ANY
EXTENT by the voluntary consumption of alcoholEXTENT by the voluntary consumption of alcohol
 A blood alcohol content above .05 but below .08 isA blood alcohol content above .05 but below .08 is
considered per se evidence of impairmentconsidered per se evidence of impairment

13. DWI (Misdemeanor)DWI (Misdemeanor)
§ 1192 (2)§ 1192 (2)
 No person shall operate a motor vehicleNo person shall operate a motor vehicle
having a blood alcohol content of .08 orhaving a blood alcohol content of .08 or
aboveabove

14. DWI Common LawDWI Common Law
(Misdemeanor)(Misdemeanor)
§ 1192 (3)§ 1192 (3)
 No person shall operate a motor vehicle while in anNo person shall operate a motor vehicle while in an
intoxicated conditionintoxicated condition
 Jury instructions generally require a person’s ability toJury instructions generally require a person’s ability to
operate a motor vehicle be substantially impaired byoperate a motor vehicle be substantially impaired by
alcoholalcohol
 No BAC result is necessary for a conviction, but if a testNo BAC result is necessary for a conviction, but if a test
is available, it may be consideredis available, it may be considered

15. Aggravated DWI (Misdemeanor)Aggravated DWI (Misdemeanor)
§§ 1192 (2)(a)1192 (2)(a)
 No person shall operate a motor vehicleNo person shall operate a motor vehicle
having a blood alcohol content of .18 orhaving a blood alcohol content of .18 or
aboveabove

16. Driving While Ability Impaired by DrugsDriving While Ability Impaired by Drugs
(Misdemeanor)(Misdemeanor)
§ 1192 (4)§ 1192 (4)
 No person shall operate a motor vehicle whileNo person shall operate a motor vehicle while
the person’s ability to operate such vehicle isthe person’s ability to operate such vehicle is
impaired by the use of a drug as defined in thisimpaired by the use of a drug as defined in this
chapterchapter
 Must be a drug listed in Public Health LawMust be a drug listed in Public Health Law §§
33063306

17. Driving While Ability Impaired CombinedDriving While Ability Impaired Combined
(Misdemeanor)(Misdemeanor)
§ 1192 (4)(a)§ 1192 (4)(a)
 Driving While Ability Impaired by theDriving While Ability Impaired by the
Combined Influence of Drugs, or ofCombined Influence of Drugs, or of
Alcohol and Any Drug or DrugsAlcohol and Any Drug or Drugs

18. Special CircumstancesSpecial Circumstances
 Boating While IntoxicatedBoating While Intoxicated
 Commercial VehiclesCommercial Vehicles
 Underage DriversUnderage Drivers
 Aggravated Unlicensed OperationAggravated Unlicensed Operation
 Attempted DWI is not legally cognizable offenseAttempted DWI is not legally cognizable offense

19. Driving While Intoxicated as a FelonyDriving While Intoxicated as a Felony
 A DWI can be charged as a felony if theA DWI can be charged as a felony if the
individual has a prior Driving While Intoxicatedindividual has a prior Driving While Intoxicated
conviction within the past 10 yearsconviction within the past 10 years
 One DWI conviction within the past 10 yearsOne DWI conviction within the past 10 years
results in DWI charges as a Class E Felonyresults in DWI charges as a Class E Felony
 Two or more DWI convictions within the past 10Two or more DWI convictions within the past 10
years results in DWI being charged as a Class Dyears results in DWI being charged as a Class D
FelonyFelony

20. Driving While Intoxicated as a FelonyDriving While Intoxicated as a Felony
 Prior conviction for a DWAI is insufficientPrior conviction for a DWAI is insufficient
as a predicate for a felony DWI chargeas a predicate for a felony DWI charge
 ForfeitureForfeiture
 Out of state convictions as predicatesOut of state convictions as predicates
 Combined with AUO 1Combined with AUO 1stst

21. Driving While Intoxicated as a FelonyDriving While Intoxicated as a Felony
 A DWI can be charged as a felony if theA DWI can be charged as a felony if the
individual was driving with a child, age 15individual was driving with a child, age 15
or younger, in the caror younger, in the car
 This is also known asThis is also known as LeandraLeandra’s Law’s Law

22. Operating a Motor Vehicle after Having Consumed
Alcohol; under the Age of Twenty-One
 OperateOperate
 Valid Chemical Test requestValid Chemical Test request
 Under 21 at the time of operationUnder 21 at the time of operation
 Was there a valid testWas there a valid test
 .02 to a .07.02 to a .07
 Lawful StopLawful Stop

23. Operating a Motor Vehicle after Having Consumed
Alcohol; under the Age of Twenty-One
 This is adjudicated through the DMV,This is adjudicated through the DMV,
meaning this is a civil penaltymeaning this is a civil penalty
 Penalties: 6 month license revocation andPenalties: 6 month license revocation and
a $125 finea $125 fine

24. You have been arrested, now what?You have been arrested, now what?
 Tickets issuedTickets issued
 Arraignment – SSP, Not Guilty Pleas, BailArraignment – SSP, Not Guilty Pleas, Bail
 Discovery Process, Experts, InvestigationDiscovery Process, Experts, Investigation
 EvaluationEvaluation
 Defenses?Defenses?
 Plea bargainingPlea bargaining
 OfferOffer
 Motions/Hearings/TrialMotions/Hearings/Trial

25. MotionsMotions
 Suppression of EvidenceSuppression of Evidence
 Reasonable Suspicion for the Stop (Ingle Hearing)Reasonable Suspicion for the Stop (Ingle Hearing)
 Probable Cause for the Arrest (Dunaway Hearing)Probable Cause for the Arrest (Dunaway Hearing)
 Statements (Huntley Hearing)Statements (Huntley Hearing)
 Sandoval / Ventimiglia / Molineaux HearingsSandoval / Ventimiglia / Molineaux Hearings
 Motion to CompelMotion to Compel
 Motion to DismissMotion to Dismiss
 30/30 Motion30/30 Motion
 Purpose of HearingsPurpose of Hearings

26. SentencingSentencing
 Driving While Ability ImpairedDriving While Ability Impaired
 $300-$500 Fine$300-$500 Fine
 Up to 15 Days in Jail for 1Up to 15 Days in Jail for 1stst
OffenseOffense
 Misdemeanor Driving While IntoxicatedMisdemeanor Driving While Intoxicated
 Up to $500-$1000 FineUp to $500-$1000 Fine
 Up to 1 year in JailUp to 1 year in Jail
 3 years Probation3 years Probation
 Split SentenceSplit Sentence
(max of 60 days in jail w/ probation)(max of 60 days in jail w/ probation)
 Ignition Interlock Device (IID)Ignition Interlock Device (IID)

27. SentencingSentencing
 Aggravated Driving While IntoxicatedAggravated Driving While Intoxicated
 $1000-$2500 Fine$1000-$2500 Fine
 Up to 1 year in JailUp to 1 year in Jail
 3 Years Probation3 Years Probation
 Split SentenceSplit Sentence
 IIDIID

28. SentencingSentencing
 Felony Driving While IntoxicatedFelony Driving While Intoxicated
 FineFine
 $1000-$5000 for a Class E Felony$1000-$5000 for a Class E Felony
 $2000-$10000 for a Class D Felony$2000-$10000 for a Class D Felony
 PrisonPrison
 1 1/3 to 4 years for a Class E Felony1 1/3 to 4 years for a Class E Felony
 2 1/2 to 7 years for a Class D Felony2 1/2 to 7 years for a Class D Felony
 5 years Probation5 years Probation
 Split Sentence (Max of 6 months Jail w/ Probation)Split Sentence (Max of 6 months Jail w/ Probation)
 IIDIID

29. License ConsequencesLicense Consequences
 DWAI ConvictionDWAI Conviction
 DWI MisdemeanorDWI Misdemeanor
 Aggravated DWI (Misdemeanor)Aggravated DWI (Misdemeanor)
 DWI FelonyDWI Felony
 Underage DriverUnderage Driver
 Post-Conviction Conditional LicensePost-Conviction Conditional License
 Commercial Drivers License (CDL)Commercial Drivers License (CDL)
 The Impaired Driver Program (IDP)The Impaired Driver Program (IDP)

30. NYS Department of Motor VehiclesNYS Department of Motor Vehicles
 Driver Responsibility AssessmentDriver Responsibility Assessment
 SuspensionSuspension
 RevocationRevocation
 Other consequences for repeat offendersOther consequences for repeat offenders
 5/5- five year suspension, five year restricted5/5- five year suspension, five year restricted
use (when three or four alcohol related drivinguse (when three or four alcohol related driving
convictions)convictions)
 Lifetime revocation- five or more alcoholLifetime revocation- five or more alcohol
related driving offenses within last 25 yearsrelated driving offenses within last 25 years

31. Collateral ConsequencesCollateral Consequences
 Canada and International TravelCanada and International Travel
 Car InsuranceCar Insurance
 Criminal RecordCriminal Record
 Effect on Professional LicensesEffect on Professional Licenses

32. My contact information:
Dennis Nave, Esq.
315-200-1429
269 West Jefferson Street.
Syracuse, New York 13202