Do not plead guilty to that Eastern Upstate New York drunk driving charge without first calling Attorney George P. Conway @1-888-DWI- ATTY which is 1-888-394-2889 to discuss your other options for free.

An Eastern Upstate New York Criminal and Traffic Lawyer Working Hard to Eliminate or Reduce the Consequences Caused By Allegations of Drunk Driving in Eastern Upstate New York including the Adirondacks, the North Country, the Capital Region, Mohawk Valley and the Hudson Valley.

A driving while impaired, intoxicated or under the influence charge can cause very serious consequences for both residents and non-residents of Eastern Upstate New York including but not limited to: the stigma of having a criminal record, jail time; probation, significant fines, mandatory surcharges; victim impact fees; driver responsibility assessments; the monthly cost and inconvenience of an ignition interlock system; court ordered alcohol treatment, loss of driving privileges, and/or increased insurance rates.

George P. Conway has the education, training and experience needed to successfully represent clients charged with any drinking and driving offense in Eastern Upstate New York including: Driving While Ability Impaired By Alcohol [DWAI] in violation of VTL § 1192(1), Driving with a BAC of .08 or Greater in violation of VTL §1192(2); Aggravated Driving While Intoxicated in violation of VTL § 1192(2)(a); Driving While Intoxicated in Violation of VTL §1192(3); Driving While Intoxicated With a Child in The Car in violation of VTL 1192(2)(b); Driving While Intoxicated Under Age 21 in violation of VTL §1192-a . George P. Conway works hard for his clients to eliminate or minimize the consequences caused by drunken driving charges in Eastern Upstate New York.

A person charged with a drinking and driving offense should not plead guilty simply because a breath or blood test allegedly measured their blood alcohol content [BAC] at .08 or greater. If you have been charged with any drunk driver offense in Eastern Upstate New York and would like to discuss your options and possible defense strategies with an attorney who cares, contact George P. Conway for a free consultation.

Drunk Driving Defense

Call 518-587-0947 or 1-888-DWI-ATTY (Toll Free) for a Free Telephone Consultation or Contact Us On Line.

Attacking Accusations of Drunken Driving

In a DWI case, it is the prosecutor's job to attempt to prove beyond a reasonable doubt that the accused operated a motor vehicle while being intoxicated and/or with a BAC greater than .08. The prosecutor usually lacks direct evidence of that the accused motorist was intoxicated or had a blood alcohol content (BAC) greater than .08. The prosecutor -therefore- resorts to attempting to prove the People's case using indirect evidence such as alleged: erratic operation; traffic violation; odor of alcohol; glassy eyes; impaired speech; poor performance on field sobriety tests; and breath test results.

The accused has no burden of proof in a DWI case. However, it is the job of a DWI defense lawyer or attorney to attack the People's indirect evidence of intoxication and BAC. The following is a brief list of some strategies that can be employed in defending against charges of drunken driving: attacking illegal stops; attacking vehicle operation; attacking order of alcohol; attacking glassy eyes, attacking impaired speech, attacking the one leg stand test, attacking the walk and turn test, attacking the Horizontal Nystagmus Gaze Test; attacking admissions; attacking the chemical test information; and/or attacking the blood test results. Please note that prior results do not guarantee future outcomes and each case is unique.

Attacking Accusations of Erratic Driving

Police commonly erroneously suspect a person is driving drunk when they observe any driving behavior short of staying absolutely straight in one's lane. However, it is not illegal to weave within the painted lines of a lane. There are also many reasons other than drunk driving for corrections of steering including but not limited to: fatigue, poor wheel alignment; lighting a cigarette; cell phone use; pot hole avoidance; changing the radio station; putting in a CD; adjusting the temperature controls; the crown in the road, heavy winds, hydroplaning and black and white fever caused by seeing a marked patrol car in the rear view mirror.

Police are trained to look for 20 different clues of drunk driving covering every possible driving behavior. One of the clues is wide turns. Another clue is sharp or abrupt turns which is the exact opposite of wide turns. So no matter what a driver may do the police can say it was a clue of drunk driving.

The police sometimes videotape the suspect's driving. These videotapes may be used to contradict the officer's testimony regarding erratic driving.

Attacking Illegal Stops

A successful attack on the stop can lead to a dismissal of the case.

Many people facing a charge of drunk driving truly believe that the police officer who stopped their car had no reason to pull them over. Many of these people suspect that the officer simply pulled them over because they were driving late at night or were seen leaving the area of a bar. I suspect most of these people are probably right.

A police officer cannot lawfully stop a vehicle unless he has a reasonable and articulable basis to believe that a traffic law or some other law has been violated. Otherwise, the stop may be ruled illegal by the court. If the court rules the stop was illegal then all the evidence against the alleged drunk driver may be thrown out and the case dismissed. For example, a stop based solely upon an anonymous report of drunk driving or a stop based upon a police officer's erroneous interpretation of the law may be ruled an illegal stop by the court.

With respect to sobriety check points, the intrusion caused by the checkpoint must be minimal, the officers working at the checkpoint must not have any discretion in arranging or carrying out their duties, and there must be adequate precautions as to safety including lighting and fair warning of the existence of the of checkpoint. Also, turning into the parking lot to avoid a checkpoint may be cause for an investigatory stop but turning off a highway onto another roadway prior to reaching the checkpoint is not just cause for a stop.

Attacking Accusations of Operation

A successful attack on operation can also lead to the dismissal of the case.

In any drinking and driving case, the prosecutor must prove the element of operation. Prosecutors generally have no problem proving operation when the driver has been stopped for a simple traffic infraction. The police officer simply testifies that he saw the accused at the wheel, the keys in the ignition and the motor was running.

But, proving operation can be difficult -if not impossible- in any case where the accused is found anywhere other than in the driver's seat with the keys in the ignition and the motor running. This is especially true since any admissions of driving made by the accused- standing alone- are insufficient to prove operation. This type of case typically involves either a parked car, a disabled car or a car found at a scene of an accident especially if there had been multiple occupants in the car prior to the arrival of the police.

Attacking Accusations of the Odor of Alcohol

Police always seem to suspect a person was driving drunk because they allegedly smelled the odor of alcohol. It is impossible to tell how much someone had to drink from the smell alcohol. Some drinks with low alcohol content, such a red wine, can cause a strong odor of alcohol on a person's breath after just a few sips. Other very high proof liquors-like vodka- do not smell at all. Non-alcoholic beer will even produce an odor of alcohol because it is the favoring -not the alcohol- that produces the odor in any drink. The smell of mouthwash can even be mistaken for alcohol.

Attacking Accusations of Glassy Eyes

Police also commonly mistakenly suspect that a person is impaired or intoxicated because their eyes allegedly appeared glassy. Glassy eyes commonly refer to an appearance of listlessness in which the eyes are unfocused and without luster. Glassy eyes can be caused by elevated thyroid levels or Graves disease. Viral conjunctivitis can also cause slight redness of the eyes and a glassy eye appearance. Low blood sugar can cause many physical and psychological symptoms including glassy eyes. Seasonal allergies and fatigue are also common causes of glassy eyes. Glassy eyes can be caused by using the window defroster or blower while wearing contact lenses.

Attacking Accusations of Impaired Speech

Police also commonly incorrectly suspect a person is impaired or intoxicated by alcohol because their speech was allegedly impaired.

The police officer is usually never familiar with the suspect's natural speech pattern. Consequently, the police officer is really in no legitimate position to judge whether the suspect's speech is impaired by alcohol. The police officer may simply be having difficulty understanding the suspect due to a heavy accent.

There are also many causes of impaired speech other than alcohol consumption. The effects of low blood sugars can lead to drunken-like slurred and or rambling speech. Facial paralysis may lead to speech difficulty that sounds slurred. Other symptoms or medical conditions that might be mistaken for "slurred speech" include but are not limited to: stuttering, lisp, phonological disorders, inarticulate speech, nasal speech, Parkinson's disease, multiple sclerosis, a deviated septum, standing out in the cold and nervousness.

Some police agencies videotape suspects at the police station. These videotapes sometimes reveal that the suspect's speech was actually clear. Police also commonly contradict their assertions of impaired speech by stating that they clearly heard the suspect tell them what they had to drink, where they were coming from, where they were going, where they live and their telephone number.

Attacking the Results of the One Leg Stand Test [OLS]

A successful attack upon the one-leg stand test could lead to the results being tossed out of the case and assist in attempting to achieve the ultimate goal of getting the case dismissed.

The one-leg stand test may not have been administered and graded pursuant to the strict standard guidelines established by the Federal Government [NHSTA]. The one leg stand test should only be administered and graded by a properly trained police officer. The One Leg Stand field sobriety test must -but is rarely- performed on a reasonably dry, hard, level and non-slippery surface with adequate lighting to provide the suspect with a visual frame of reference.

The one-leg stand test is not considered valid for people 65 years of age or older. It is also not considered valid for people 50 pounds or more over weight. People with back or leg problems may have difficulty with the one leg stand test even when sober. People with inner ear disorders may also have difficulty with the one leg stand test even when sober.

People wearing heels greater than two inches high must be given the chance to remove their shoes before performing the one leg Stand test.

The one leg stand must be administered and graded pursuant to strict guidelines to be considered valid. According to the National Highway and Traffic Safety Administration, improperly administered field tests are not valid evidence of intoxication.

The one leg stand test even when administered and graded correctly is only considered 65 % accurate for determining if the suspect has consumed too much alcohol to drive.

A police video tape may show that the officer failed to properly administer or grade the one leg stand test.

Attacking the Results of the Walk and Turn Test [WAT]

A successful attack upon the walk and turn test could lead to the results being tossed out of the case and assist in attempting to achieve the ultimate goal of getting t the case dismissed.

The walk and turn test may not have been administered and graded pursuant to the strict standard guidelines established by the Federal Government [NHSTA].The walk and turn test may not have been administered by a properly trained police officer.

The walk and turn field sobriety test may not have been performed upon a designated straight line. The designated line may have been an imaginary rather than visible.

The test is not necessarily valid for suspects 65 years or older, persons with injuries to their legs, or persons with inner ear disorders. Individuals wearing heels more than two inches high should be given the opportunity to remove their shoes. Individuals with sight in only one eye may have difficulty with the test because of poor depth perception.

The officer may have failed to determine if the suspect has any handicaps which would prevent proper performance of the test. The walk and turn test may not have been administered and graded pursuant to the strict standard guidelines.

According to the National Highway and Traffic Safety Administration, improperly administered field tests are not valid evidence of intoxication.

The walk and turn test even when administered and graded correctly-which is not always the case-is only considered 68% accurate for determining if the suspect has consumed too much alcohol to drive.

A police video tape may show that the officer failed to properly administer or grade the walk and turn test.

Attacking the Results of Horizontal Gaze Nystagmus Test [HGN]

A successful attack upon the Horizontal Gaze Nystagmus Test could lead to the results being tossed out of the case and assist in attempting to achieve the ultimate goal of getting the case dismissed.

The Horizontal Gaze Nystagmus test may not have been administered and graded pursuant to the strict standard guidelines established by the Federal Government [NHSTA]. The Horizontal Ggaze Nystagmus test may not have been administered and graded by a properly trained police officer.

The police officer may have failed to request the suspect to remove their eye glasses before administering the Horizontal Gaze Nystagmus . The police officer may have failed to screen the suspect for equal pupil size before administering the horizontal Gaze Nnystagmus Test.

The police officer may have failed to screen the suspect for equal tracking before administering Horizontal Gaze Nystagmus test. The suspect may have been facing the patrol car's flashing lights while taking the Horizontal Gaze Nystagmus test.

The police officer may have been holding the stimulus too close or too far from the suspect's nose. The police officer may have failed to hold the stimulus slightly above eye level.

The police officer may have failed to make the correct number of passes. The police officer may have failed to take the correct amount of time to do the passes.

The police officer may have failed to properly gage when the eye reached a 45 degree angle. Nystagmus may be due to causes other than alcohol. Other causes include seizure medication and some other drugs. Nystagmus can also be caused by certain pathological disorders including but not limited to: brain tumors, brain damage and some diseases of the inner ear. A large disparity between the performance on the right and left eye may indicate a medical condition.

According to the National Highway and Traffic Safety Administration, improperly administered field tests are not valid evidence of intoxication.

The Horizontal Gaze Nystagmus test even when administered and graded correctly-which is not always the case-is only considered to be approximately 77% accurate for determining if the suspect has consumed too much alcohol to drive.

A police video tape may show that the officer failed to properly administer or grade the Horizontal Gaze Nystagmus test.

Attacking Breath Analysis

A successful attack on the breath analysis can cause the results of the test to be thrown out of the case and any charges based solely upon the breath analysis results to be dismissed. For example, a charge of driving with a BAC of .08 or greater to be dismissed or a charge of aggravated driving while intoxicated.

The manufacturers of breath testing devices have specified protocols, which must be followed for a breath result to be valid. Failure to follow these requirements may result in improper readings.

The quantity of breath analyzed for its alcoholic content must be established only by direct volumetric measurement or by collection and analysis of a fixed breath volume. The breath samples collected for analysis must be essentially alveolar in compensation. The breath testing machine must be capable of analyzing a suitable reference standard, the result of which analysis must agree with the reference standard value within the limits of plus or minus0.01 percent weight per volume.

The breath sample must be collected at the direction and satisfaction of a police officer within two hours of the time of the arrest or within two hours of a positive alcohol screening test.

The police office must observe the suspect continuously for at least 15 minutes prior to the collection of the breath sample to insure that the suspect has not ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten or smoked or been allowed to place anything in his or her mouth. The police officer must observe the suspect for an additional 15 minute period if the suspect does regurgitate, vomit or place anything in his or her mouth

The system must be purged immediately preceding both the testing of the each suspect and the analysis of the reference standard.

The result of an analysis of a suitable reference standard with an alcoholic content greater than .08 percent must agree with the reference standard value within the limits of plus or minus 0.01 percent weight per volume, or such limits set by the commissioner. This analysis must immediately precede or follow the analysis of the breath of the subject and must be recorded. The results of an analysis of breath for alcohol must be expressed in term of percent per volume, to the second decimal place.

Proper and adequate records of methods and procedures, analyses, and results must be maintained by each agency or laboratory using breath analysis machine, including but not limited to operational checklist, calibration test records, and certifications for standards and ampoules.

The breath analysis machine is also calibrated to assume that the suspect's breath temperature is normal (34 degrees centigrade). However, the blood to breath ratio decreases as the suspect's body temperature rises. Consequently, a breath sample temperature higher than normal will result in a higher reading of approximately 6 to 7% for every degree above 34 degrees centigrade. There is now one company that offers a breath testing machine that measures the suspect's temperature and makes appropriate adjustments to the results. However, this machine is not presently being used in New York.

Breath analysis is only an estimate of a suspect's blood alcohol content. The breath analysis machine assumes the suspect has a blood breath ratio of 2,100 to 1. The problem with this method of calibrating the breath analysis machine is that not everyone has a 2,100 to 1 breath to blood alcohol ratio. Consequently, the results of the breath analyses will be artificially inflated if the suspect's actual breath to blood alcohol ratio is lower than the assumed 2,100 to 1 ratio.

The prosecutor must prove the suspects blood alcohol content at the time of driving. Recent consumption of alcohol just prior to driving will cause the test results to be higher than what the true level was when the suspect was operating the automobile. Many items contain forms of alcohol, which may cause false results, such as asthma spray, cough drops, paints, and fingernail polish. These items can cause the breath results to be invalid.

Breath analysis results can be erroneously elevated by the affects of allergies, asthma, bronchitis, breath sprays, broncospasms, dental apparatuses, diabetes, diuretics, Gastroesophageal Reflux Disease [GERD], gingivitis, sinusitis and/or upper respiratory tract infections.

Currently, there are 28 states that require suspect's of drunken driving be given a second breath analyses test to confirm the reliability of the first test. New York is not one of those 28 states even though good scientific principles require it and the National Safety Council Committee on Alcohol and Other Drugs recommends it.

A high BAC breath test result may be successfully attacked when the test results are inconsistent with the physical observations of the accused motorist. This type of case involves a high BAC test result and a police officer who does not recall strong signs of impairment in the way the motorist drove, talked, walked or functioned. Some police agencies videotape the breath testing process. These tapes may establish that the testing procedure resulted in inaccurate or inadmissible tests due to burping, radio transmitters or other improprieties.

Attacking Blood Analysis

A successful attack on the blood analysis can cause the results of the test to be thrown out of the case and any charges based solely upon the blood analysis results to be dismissed. For example, a charge of driving with a BAC of .08 or greater to be dismissed or a charge of aggravated driving while intoxicated.

Only certain individuals acting at the request of a police officer are authorized to withdraw blood for the purpose of determining the alcohol content therein. The blood test results could be tossed out of the case if the blood was not drawn by one of those specific individuals at the request of a police officer. All samples must be collected within two hours of the time of the arrest. The blood test result could be tossed out of the case if the blood sample was not withdrawn drawn within two hours of the arrest.

Alcohol or phenol cannot be used as a skin antiseptic while drawing blood for the purpose of determining the alcohol content therein. Only an aqueous solution of a nonvolatile antiseptic shall be used as a skin antiseptic while drawing blood for the purpose of determining the alcohol content therein. The blood test results can be tossed out if alcohol or phenol was used as antiseptic on the skin.

The blood must be drawn with a sterile needle into a vacuum container containing a solid anticoagulant or sterile dry needle and syringe and deposited into a clean container containing a solid anticoagulant, which container must then be capped or stoppered, and identified. Otherwise, the blood test results could be tossed out of the case.

There certain analytical procedures that the laboratory must adhere to including blank analysis where appropriate and analysis of a suitable reference or control sample. The blood test results may be tossed out of the case if those procedures are disregarded or ignored by the laboratory responsible for testing the blood sample.

Attacking Admissions

A suspect's admission to driving, without more, does not prove a charge of drunken driving. Also, prosecutors may not use as evidence interrogation answers of a suspect in custody for a drunken driving offense if the police failed to read the suspect his Miranda rights.

Please call Attorney George P. Conway if you have been accused of drunken driving in Eastern Upstate New York for a free initial consultation at 518-587-0947 or 1-888-ATTY-DWI [Toll Free]