New York Criminal Defense Lawyer Blog

As previously discussed in this blog, former professional basketball star Charles Barkley was stopped and arrested on suspicion of driving under the influence of alcohol in Arizona. Barkley opted to have a blood test rather than a breath test. The blood test results allegedly indicated that Barkley’s blood alcohol content was .149. The Arizona -like New York- state limit for driving under the influence - known as driving while intoxicated in New York- is .08. If Barkley had been stopped in New York, he would have been charged with driving while intoxicated in violation of VTL §§ 1192(2) and 1192(3). A conviction of driving while intoxicated first offense in New York is an unclassified misdemeanor punishable by a fine of between five hundred and thousand dollars, up to one year in jail, revocation driving privileges for no less than six months, a mandatory surcharge of four hundred dollars and a driver responsibility assessment of two hundred fifty dollars per year for three years. The person may also be ordered to have an alcohol evaluation by a DWI screening and assessment provider and to follow any recommendations for treatment. They would also probably be ordered to participate in the drinking driver program. The person would also face a significant number of other possible collateral consequences. Sir Charles Barkley is presumed innocent unless and until proven guilty in a court of law.

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Posted In: New York DWI , Recent News

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In recent blog posts the Walk and Turn and the One- Leg-Stand field sobriety tests have been reviewed. Another commonly used field sobriety test is the Horizontal Nystagmus Gaze test. Horizontal Nystagmus Gaze refers to noticeable involuntary jerking of the eyes while moving side to side. The police officer will test each of driver’s eyes by asking the driver to look at a small stimulus-commonly the tip of a pen- while keeping their head still as the police officer moves the object from side to side. The police officer will start with the driver’s left eye and then do the driver’s right eye.

The officer is trained to look for three specific clues during the Horizontal Nystagmus Gaze test: noticeable jerking of the eye as it moves side- to- side; distinctive jerking of the eye when it moves and stays as far to the side as possible; and jerking of the eye prior to reaching a forty- five degree angle. The maximum number of clues in each eye is three. The maximum number in clues in both eyes is six. Law enforcement assumes that any driver who exhibits four or more clues during the Horizontal Nystagmus Gaze test to have a blood alcohol content of greater than .10. The National Highway Safety Traffic Administration claims this test is 77% accurate when a driver exhibits four or more clues.

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A driver who is stopped and suspected of driving while intoxicated in New York will be required to take a field sobriety test that will most likely include the one-leg-stand test. The one-leg-stand test has two stages. The first stage of the one-leg-stand test is the instruction stage. The second stage of the one-leg-stand test is the balance and counting stage.

During the instruction stage of the one-leg-stand test, the driver will be required to stand with their feet together, arms by their side, and listen to instructions on how to perform the test. The instruction part of the test is designed to divide the driver’s attention between maintaining the stance and listening and recalling instructions.

During the balance and counting stage of the one-leg stand test, the driver must keep one of their legs raised to a point where their foot is approximately six inches off the ground and maintain this position while counting “one thousand and one”, one thousand and two”, “one thousand and three” until instructed to stop. The balance and count stage is designed to divide the driver’s attention between balancing on one foot and counting aloud. The officer is supposed to have the driver perform the balance and count stage for approximately 30 seconds.

The officer is trained to look for four specific clues during the one-leg-stand test: swaying; arms being used to balance; foot dropping and hopping. A driver who exhibits two or more clues is presumed by law enforcement to have a BAC greater than 0.10. The National Highway Traffic Safety Administration claims that the walk and turn test is 65% accurate which means the test is inaccurate 35% of the time.

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The walk-and-turn test is one of several field sobriety tests used by police when they suspect that a stopped driver may have been driving while intoxicated. The walk-and-turn test is a divided attention test in that it divides the driver's attention between listening, remembering, small muscle control, balancing, counting aloud, and walking heel-to-toe. It has two stages. It has the instruction stage and the walking stage. During the instruction stage, the driver is required to stand heel- to-toe with their hands at their side while listening to instructions. The walking stage takes place on a real or imaginary line. During the walking stage the driver must take nine heel- to- toe steps forward then turn around in a set way and then take nine heel- to- toe steps back towards where they started. The driver must also count their steps aloud and look down at their feet while performing the walking stage of the test. The turn requires the driver to keep their front foot on the line, turning as instructed and taking several small steps with their back foot until the turn is completed.

During the walk-and-turn test the police officer is trained to look for eight “clues”: inability to balance during the instruction stage; starting the walking stage too early; stopping during the walking stage; failure to touch heel- to-toe; stepping off the line; use of arms to balance; loss of balance during the turn or failing to turn in the prescribed manner and taking an incorrect number of steps. A driver who displays two or more of these clues or is unable to do the test is assumed by the police to have a blood alcohol content greater than 0.10. The National Highway Traffic Safety Administration claims that the walk-and-turn test is 68% accurate. In my book, that means the test is inaccurate 32% of the time.

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A person convicted of a drinking driver offense in New York State will be required to pay a mandatory surcharge over and above any other fines, fees or assessments. A conviction of a felony drinking driver offense carries a mandatory surcharge of $520.00. A conviction of a misdemeanor drinking driver offense carries a mandatory surcharge of $395 in cities and $400.00 in towns and villages. A conviction of a violation drinking driver offense carries a mandatory surcharge of $255.00 in cities and $260 in towns and villages

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Pursuant to New York Vehicle and Traffic Law § 1196(7)(a), a conditional license allows a person to operate a motor vehicle:

• to and from the person’s place of employment,

• during work if the person’s employment requires the operation of a motor vehicle;

• to and from a class or an activity which is an authorized part of the alcohol and drug rehabilitation program so long as the person’s attendance is required,

• to and from a class or course at an accredited school, college or university;

• to and from a state approved institution of vocational or technical training;

• to or from court ordered probation activities;

• to and from a motor vehicle office for the transaction of business relating to such license or drinking driver program;

• for a three hour consecutive daytime period, chosen by the administrators of the drinking driver program, on a day during which the person is not engaged in usual employment or vocation;

• to and from a medical examination or treatment as part of a necessary medical treatment for such person or member of their household, as evidenced by a written statement to that effect from a licensed medical practitioner; and

• to and from a place, including a school, at which a child or children of the person are cared for on a regular basis and which is necessary for the person to maintain their employment or enrollment at an accredited school, college or university or at a state approved institution of vocational or technical training.

It is a traffic infraction for a person to drive with a conditional license at any other time. [VTL § 1196(7)(f)] A person convicted of driving with a conditional license at an unauthorized time will be fined two to five hundred dollars and/ or sentenced up to fifteen days in jail. [VTL § 1196(7)(f)] Their conditional license will also be revoked. [VTL § 1196(7)(f)]

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