Joseph Potashnik & Associates

NYC DUI & DWI Lawyers

NYC DUI & DWI Lawyers

DUI laws are rigidly strict to discourage the dangerous activity of impaired driving. While the statutes exist to primarily target alcohol use, they can be applied to other substances too. Marijuana is a common drug that gets implicated in DUI cases, and there are many ways its presence can affect one?s courtroom defense. This guide explores the nuanced regulations pertaining to cannabis use behind the wheel.

In some localities, marijuana use can constitute a DUI on its own, especially in regions where legalization has instructed police to treat the substance like alcohol. The severity of an arrest can be heightened by possession charges in areas where marijuana is still banned. Everything in the car is subjected to a formal inspection if a crime is suspected, so a DUI can incriminate marijuana use, and vice versa.

If marijuana is detected in conjunction with alcohol, any credible notion of perceived sobriety will be discarded out the window. Paraphernalia charges can also be tacked on, which does not usually happen with instances involving only alcohol. The scent of burnt cannabis can be used to warrant a search and seizure. This scenario inevitably leads to roadside tests.

Breathalyzer scans tend to focus solely on alcohol, so passing this informal test may eliminate the detection of marijuana in the system; however, reporting inebriation through this form of measurement can lead to thorough lab tests at the police station. Officers can use scientific analysis to pinpoint trace amounts of marijuana in the blood, urine or hair follicles.

Detection periods vary wildly due to the pace of personal metabolism; therefore, it is possible to be charged with a DUI despite the lack of consumption for a long time. Marijuana leaves residual chemicals in the urine for up to six weeks, and the blood can store proof of cannabis for a few months; meanwhile, the hair keeps an even longer record. This means charges can be filed for a substance that was consumed too long ago to have truly impaired judgment. Remember, overweight individuals are more likely to retain the active ingredients of marijuana in their blood stream, especially since its detectable compounds are stored in the body?s fat cells.

It is important to keep in mind that every jurisdiction has a tendency to treat marijuana a little differently. The variation between regions can range from minor to massive. With a DUI case, it can be the distinguishing factor between community service and time served. Also, underage intoxication will typically be prosecuted much more harshly. Committing a DUI alone is enough to earn a suspended license. When combined with marijuana, the situation can lead to permanent revocation.

The aforementioned rules do not just apply to motor vehicle operation. Some counties will subject cyclists to the same laws governing intoxication on the move. The main key to avoiding run-ins with the law is maintaining a knowledgeable awareness of local regulations. By adhering to all legal limits, it is possible to avoid every bit of strife associated with a DUI charge or conviction.

What is a Breathalyzer?

A Breathalyzer is a device that’s used by law enforcement officials to measure a person’s blood alcohol content or BAC by having that person breathe into it. The first true Breathalyzer was created by Robert Frank Borkenstein in 1954, and the first handheld version was invented in Britain in 1967. Earlier methods of determining BAC by breathing date back to 1927, and the idea of using a person’s breath goes back to 1874.

These devices work by oxidizing any ethanol in your breath into acetic acid and water, and this reaction creates an electric current within the device that can give an approximation of your BAC. Newer versions use a fuel cell sensor that can detect many variables that used to result in false positives.

There are two types of Breathalyzers prevalent. One is a desktop version that’s used in homes, businesses, and even some cars. A handheld version is used by police officers when performing field sobriety tests, and all breath testers used by police are certified by the National Highway Transportation Safety Administration. When someone is arrested for DUI, they will be taken to the nearest police station and given a formal breath test since some handheld devices aren’t completely reliable. If the test shows a BAC of .08 or higher, then the suspect will be formally charged.

The device’s reading will be registered as evidence in court, and many states require juries to presume a high BAC reading in DUI cases. However, they can disregard the findings if the test is considered to be faulty or other forms of evidence raise reasonable doubts.

There are several ways that a Breathalyzer test can be considered erroneous, but the most common is the presence of mouth alcohol. This can come from recently using mouthwash, recent drinking before taking the test or even belching. To reduce the possibility of errors, police officers are usually required to observe a DUI suspect for 15-20 minutes before administering a breath test. Another common possibility is that the test was performed while the suspect’s body was still absorbing alcohol, which can lead to false positives.

Can I be Arrested for DUI by Taking Prescription Medication?

The answer is yes, you can be arrested for DUI for drinking alcohol, taking illegal drugs or even taking drugs which you have been prescribed and are taking as directed.

How DUI Is Legally Defined
The “DUI” means “Driving Under the Influence.” You will notice that the questions of under the influence of what is left open.

The law almost universally states that only two fact must be proven to find you guilty of DUI. First, that you were driving a car. Second, that your ability to do so was impaired by drinking alcohol, taking a drug (even when prescribed), or both.

You cannot defend yourself from the charge by stating the drug was prescribed by your doctor and that you took it as directed. You will be found guilty.

Know Your State’s DUI Laws
There are some states that have different ways to enforce their DUI laws. In Massachusetts, the law states impairment for a DUI charge come from “narcotic drugs, depressants, and stimulant substances.?

California denies the defense that one is entitled to use a drug just because it was prescribed. The state also limits drivers with certain disabilities from driving, such as one who is addicted to a drug.

The Future of DUI Charges
The National Highway Traffic Safety Administration (NHTSA) is trying to influence enactment of laws to charge drivers with any amount of alcohol or drugs in their systems, not just the usual 0.08 percent blood alcohol content used in today’s laws.

Protecting Yourself from a DUI Charge
Before driving while taking a new drug, carefully read the written warnings that come with it. Ask your physician and/or your pharmacist if it is safe for you to drive. Some drugs will need to be used carefully at first until you are accustomed to the dose and know how you will react to the drug.

Drugs like Ambien, Xanax and all pain killing drugs are dangerous for many people. There is often problems, particularly when newly prescribed and certainly when mixed with alcohol.

Carefully consider what prescription drugs you are taking and what are the consequences of driving while taking them, particularly at night. Ask your pharmacist if it is safe to do so and what will happen if you drink alcohol, even one beer.

It is certainly preferable to stay at home and not injure someone in an avoidable accident or end up with an expensive DUI ticket.

What are the Top Mistakes Made After a DUI Arrest?

Charges of driving under the influence (DUI) are taken very seriously by police and the larger justice system. It is important to act appropriately and in your own best interest after a DUI arrest. Unfortunately, there are many mistakes that are commonly made that can negatively influence the outcome of the case. It is important to understand some of the top mistakes that people make after a DUI arrest.

Talking About the Case

A top mistake that people make after a DUI arrest is talking about the case. This means recounting the events that lead to the arrest or any resulting accident. Talking to police, friends or other parties involved in the case is a major mistake. You should answer police and insurance questions with simple answers. Do not reveal too much information. This is because your description of the events could actually be admitting guilt. These revelations can make winning your case very difficult. You should not give full statements to insurers or others until you have spoken with a DUI attorney.

Not Seeking Legal Representation

Another mistake make people make is to not seek legal representation. DUI cases are very serious and can lead to jail time, a suspended license and large fines. You will want to secure the services of an attorney with DUI experience as soon as possible after the arrest occurs. You never want to represent yourself since prosecutors will take full advantage of your inexperience. You also want to avoid taking legal advice from friends or other people who have been involved in DUI cases before. The best course of action is to find and hire a DUI attorney in the area for representation right away.

Ignoring the Case

A top mistake is to simply ignore the case. A DUI charge is taken just as seriously as all other criminal charges in the state. You must remain engaged with law enforcement and the legal system. This means opening and reading all communications. You must listen to and respond to official state and court requests. You must show up for every court date on time. Failing to do any of these things could result in the issuance of a bench warrant for your arrest along with additional charges. DUI cases are not minor issues. They will not just go away just because you are ignoring the courts.

Not Requesting A DMV Hearing

Many people fail to request a hearing with the Department of Motor Vehicles (DMV) or another government agency after the arrest. If you do not request this type of administrative hearing with the correct agency in your state, then your license to drive will be automatically suspended for anywhere from a year to five years. Requesting this hearing allows you to explain your situation and any mitigating factors. Your license might not be suspended. You might also get special exemptions to drive to work or school. You need to request this hearing quickly. Most states give you only 10 days or less to request the hearing before a suspension occurs.

How Does Ecstasy Affect a Person’s Normal Faculties in a DUI?

Ecstasy is a drug that possesses a unique power to override a person?s cognitive faculties, especially when consumed alongside other substances. When ingested, the chemical can cause users to exhibit a variety of peculiar behaviors. These erratic impulses are especially dangerous for individuals operating motor vehicles. This guide examines the innate relationship between ecstasy and DUI charges.

Unfortunately, one common characteristic of an ecstasy user is a tendency to indulge in binge drinking while intoxicated. The drug buffers the negative effects of alcohol in favor of highlighting the positive ones. This situation naturally encourages people to drink way more than they could otherwise tolerate. Obviously, this scenario is extremely hazardous once behind the wheel.

Aside from excessive drinking, ecstasy users also make themselves distinctly noticeable on the streets. They are known to cruise in flashy vehicles at night listening to loud electronic music. The drug embeds a feeling of invincibility, so there is hardly any fear of the very real repercussions.

The stimulant aspects of ecstasy make users dangerously prone to distraction and multitasking. The personality of intoxicated individuals can be described as a blend between hyper mania and irrational confidence. This is a bad combination for the road, and an even worse combo for handling potential police interactions.

In fact, many ecstasy users fail to comprehend what is happening when they get pulled over by a cop. Their inability to take the incident seriously can create countless problems. A lack of cooperation can be perceived as evading arrest, which is a serious charge to fight. If disobedience is taken far enough, officers can cite harassment and assault. It is much better to defend against a lone DUI case. Possession is the worst charge that can be compounded with a DUI. Not only is it a felony, but it provides damning evidence of intentional intoxication behind the wheel.

Promiscuity is another trait that gets ecstasy users arrested. Often times, their revealing attire can attract police attention. If a driver is spotted lacking sufficient clothing coverage, their vehicle can be legally checked. Sometimes, the lack of adherence to formal dress codes is intentional; however, it is more commonly caused by negligence due to a lack of self-awareness.

A common reason for DUI charges against ecstasy users is their tendency to participate in street races. This high level of speeding quickly leads to arrests. Surprisingly, other ecstasy users are caught for the opposite reason of driving too slow. Either way, law enforcement can commission full lab tests once the police have reason to suspect intoxication. These tests can provide irrefutable evidence against you to ensure a DUI conviction.

To further exacerbate difficulties, ecstasy produces a lack of memory that renders testimony impossible. A first-person account of the event cannot be provided by the defendant if they cannot remember the incidents that transpired. In this case, their only hope is an astute attorney. A plea bargain is the best bet in this situation, and it may be the only path for avoiding a prison term.

How Do Presumptive Impairment Laws Affect Your DUI Case?

Presumptive impairment laws were designed to make it easier for prosecutors to prove that a person was driving under the influence (DUI) while on the roads. The laws presume you are incapable of operating a vehicle safely based on a chemical test and not on what officers observed. Presumptive impairment laws could affect your DUI case in a few ways.

You Will Be Assumed To Be Impaired After Testing

One of the main ways that presumptive impairment laws affect DUI cases is by introducing the idea that you were impaired based on nothing more than a chemical test. You do not have to behave in an impaired way. The prosecutor does not have to prove that you were showing any signs of impairment at all. The law states that you are assumed to be impaired if your blood alcohol content is at or above the legal limit. Fortunately, you are given some legal tools that you can use to fight this assumption during a trial.

Your Charges Might Be Split Temporarily

The next way presumptive impairment laws could affect your case is that your charges could be split. This is a tactic used to make it even more difficult to prove that you were not impaired. The charges could be split into a standard DUI charge and something called a DUI per se charge. You can be found guilty of one charge and innocent of the other. If you are found guilty of both charges, then they are combined into a single DUI at the end of the trial. DUI per se charges mean that you could be penalized just for having a blood alcohol level above the legal limit and not for anything related to impairment. This does not always occur although it is becoming more common. The penalties for DUI per se are usually slightly less harsh than the penalties for a typical DUI charge.

You Can Rebut the Presumption

Although you are presumed to be impaired when the tests show an elevated blood alcohol content, the presumption can actually be rebutted. This means that you are allowed to present evidence to show that you were not actually impaired. A common way an experienced lawyer will do this is to challenge the testing method. There might even be chain of custody issues with the results that can be explored. Another defense is that the actual reading does not indicate impairment scientifically. This defense shows that although you were above the legal limit, the alcohol did not impair your ability to drive normally. A final common strategy is to question whether your blood alcohol level was actually at the recorded level while you were driving. Any one of these can be a successful rebuttal when argued by a skilled lawyer.

It Will Become More Difficult To Avoid the Charges

The final way presumptive impairment laws affect DUI cases is by making it more difficult to avoid charges. These laws are designed to provide some type of punishment for anyone who has elevated blood alcohol levels. Although you might be able to defeat the DUI charge, the DUI per se charge might still apply.

What’s a Sobriety Checkpoint

The next time that you have a few drinks with friends and hop in your car to head home, you might want to think about the sobriety checkpoints you pass along your way. Often used by law enforcement officials as a way to catch those driving with a high blood alcohol concentration, many jurisdictions also allow those officers to check vehicles, drivers and their passengers for other signs of illegal activities. These checkpoints often take place during and around major holidays, including Thanksgiving and New Year’s Eve. Learning more about those checkpoints can show you what to expect when you encounter one.

What is a Sobriety Checkpoint?

A sobriety checkpoint, sometimes called a DUI checkpoint, is a roadblock often placed in the middle of a major road. Police officers working at the checkpoint stop every card moving in either direction down the road and administer sobriety tests as needed. Some checkpoints will require that every driver on the road take a breathalyzer test, while other checkpoints will only administer tests to those acting in a suspicious manner that makes police officers working the scene believe the driver is intoxicated.

Field Sobriety Test vs. Breathalyzer

When stopped at a checkpoint, the officers at the scene have the right to administer either a field sobriety test or a breathalyzer test. The breathalyzer test consists of a small tube that runs into a box that tests your breath and determines your blood alcohol concentration. If the officer chooses a field sobriety test, the officer will request that you get out of your vehicle and perform a few tests to check your reflexes and sobriety. If the officer on the scene believes you’re guilty of a DUI, the officer may ask that you complete both tests.

Consequences of Failing

Failing one or both of the tests issued at a checkpoint leaves you facing a DUI charge. The officers at the scene have the legal right to arrest you for a DUI and take you back to the station until a family member can bail you out of jail. Some officers will give you some leniency on the scene. You may have the chance to let one of your passengers drive your vehicle home or call for another ride. This usually only occurs in cases where the officers cannot leave the scene, cannot find another officer to take you to the station or due to the amount of people at the checkpoint.

Reasons Behind Checkpoints

Many states use sobriety checkpoints as a way to reduce the number of DUI cases in the region and to keep the streets safer. Typically placed in major parts of town, these checkpoints allow officers to get people off the streets who might cause a car accident because of their blood alcohol concentrations. Some states also let officers observe and check cars for signs of illegal drugs and other crimes. Keeping your BAC at a reasonable level and avoiding driving while intoxicated can keep the streets safer and reduce your risk of failing one of the tests issued at a checkpoint.

What is an Administrative Suspension Hearing in a DUI Case?

When a person is arrested for driving under the influence (DUI), he or she will face two different types of potential penalties: criminal and administrative. The criminal charge of DUI will be heard in a court of law and may result in a monetary fine and / or incarceration. An administrative charge of DUI may result in the suspension of his or her driving privileges. It is important for a person charged with DUI to understand the administrative suspension process in order to properly protect his or her rights.

Most states have an administrative suspension process. This means that the state will suspend the driver?s license of anyone charged with criminal DUI or anyone who refuses to submit to sobriety tests at the time he or she is pulled over by police. Administrative suspension notices can be given immediately when a person is stopped or will arrive through the mail in the days following the traffic stop, depending on the laws in the area where the stop occurred. When a person receives notice of an administrative suspension, he or she can request that the licensing authority schedule an administrative suspension hearing about the license suspension in front of an administrative official.

The request for an administrative suspension hearing will result in the licensing agency scheduling a hearing where an administrative official will determine whether or not the suspension is proper. In most cases, the arresting officer will be required to attend the hearing to give testimony regarding the traffic stop and what the officer observed that made him or her determine that the driver was intoxicated. Even if a driver believes that he or she is guilty of the DUI charge, it can still be a wise decision to request a hearing. In most jurisdictions, a person?s license is reinstated when he or she requests an administrative hearing. The license will then be in effect, allowing the accused to drive, until the hearing is held.

It is important to note that the result of an administrative suspension hearing has no bearing on what will be decided regarding the criminal charges. For example, a person could have his or her license suspended but be found not guilty of the criminal charges. As DUI charges can have serious consequences, a person charged with DUI should consider hiring an experienced attorney to help defend him or her from both the administrative and criminal penalties of the charge.

Are you facing criminal charges?
We will protect you in all New York City courts!