Driving While Intoxicated (DWI) is a crime. In NYS, the penalties include the loss of driving privileges, fines, and a possible jail term.

Your judgment, coordination and ability to drive a vehicle change when you consume any amount of alcohol. The level of impairment depends on five conditions:

1. the amount of alcohol you drink
2. the amount of food you eat before or while you drink alcohol
3. the length of time you drink alcohol
4. your body weight, and
5. your gender.

There is no quick method to become sober. The best method is to wait until your body absorbs the alcohol. The average rate that your body processes alcohol is approximately one drink per hour.

What are the alcohol and drug-related violations in New York State?

BAC = blood alcohol concentration

1. DWI: Driving While Intoxicated; .08 BAC or higher or other evidence of intoxication.
2. Aggravated DWI: Aggravated Driving While Intoxicated: .18 BAC or higher.
3. DWAI/Alcohol: Driving While Ability Impaired (by alcohol); .05 BAC to .07 BAC, or other evidence of impairment.
4. DWAI/Drug: Driving While Ability Impaired by a single Drug other than alcohol.
5. DWAI/Combination: Driving While Ability Impaired by a the Combined Influence or Drugs or Alcohol.
6. Chemical Test Refusal: A driver who refuses to take a chemical test (normally a test of breath, blood or urine) can receive a driver license revocation of at least one year (18 months for a commercial driver) and must pay a $500 civil penalty ($550 for a driver of commercial vehicles) to apply for a new driver license. A driver who refuses a chemical test during the five years after a DWI-related charge or previous refusal will have their driver license revoked for at least 18 months (permanent for a commercial driver) and must pay a $750 civil penalty to apply for a new driver license. If the driver is under age 21, and refuses a chemical test during the five years after a DWI-related charge or previous refusal, they will have their driver license revoked for at least one year or until age 21, whichever is longer and must pay a $750 civil penalty to apply for a new driver license.
7. Zero Tolerance Law: A driver who is less than 21 years of age and who drives with a .02 BAC to .07 BAC violates the Zero Tolerance Law.

What are the penalties for Alcohol-related or Drug-related Violations?

Penalties for Alcohol-related and Drug-related Violations:

Violation (1) Mandatory Fine (2) Maximum Jail Term Mandatory Driver License Action (3) Aggravated Driving While Intoxicated (A-DWI) $1,000 – $2,500 1 year Revoked for at least one year

Second A-DWI in 10 years (E felony) (1) $1,000 – $5,000 4 years Revoked for at least 18-months (5)

Third A-DWI in 10 years (D felony)(1) $2,000 – $10,000 7 years Revoked for at least 18-months (4,5)

Driving While Intoxicated (DWI) or Driving While Impaired by a Drug (DWAI-Drug) $500 – $1,000 1 year DWI-Revoked for at least six months

DWAI-Drugs – Suspended for at least six months

Second DWI/DWAI-Drug violation in 10 years (E felony)(1) $1,000 – $5,000 4 years Revoked for at least one year

Third DWI/DWAI-Drug violation in 10 years (D felony)(1) $2,000 – $10,000 7 years Revoked for at least one year (4)

Driving While Ability Impaired by a Combination of Alcohol/Drugs (DWAI-Combination) $500 – $1,000 1 year Revoked for at least six months

Second DWAI/Combination in 10 years (E felony)(1) $1,000 – $5,000 4 years Revoked for at least one year/18 months (5)

Third DWAI/Combination in 10 years (D felony)(1) $2,000 – $10,000 7 years Revoked for at least one year/18 months (4,5)

Driving While Ability Impaired by Alcohol (DWAI) $300 – $500 15 days Suspended for 90 days

Second DWAI violation in 5 years $500 – $750 30 days Revoked for at least six months

Zero Tolerance Law $125 civil penalty and $100 fee to terminate suspension None Suspended for six months

Second Zero Tolerance Law $125 civil penalty and $100 re-application fee None Revoked for one year or until age 21

Chemical Test Refusal $500 civil penalty ($550 for commercial drivers) None Revoked for at least one year, 18 months for commercial drivers.

Chemical Test Refusal within five years of a previous DWI-related charge/Chemical Test Refusal $750 civil penalty None Revoked for at least 18 months, one-year or until age 21 for drivers under age 21, permanent CDL revocation for commercial drivers.

Chemical Test Refusal -
Zero Tolerance Law $300 civil penalty and $50 re-application fee None Revoked for at least one year.

Chemical Test Refusal -
Second or subsequent Zero Tolerance Law $750 civil penalty and $50 re-application fee None Revoked for at least one year.

Driving Under the Influence – (Out-of-State) N/A N/A Suspended for 6 months. If less than 21 years of age, revoked at least one year.

Driving Under the Influence – (Out-of State) with any previous alcohol-drug violation N/A N/A Suspended for 6 months. If less than 21 years of age, revoked at least one year or until age 21 (longest term).

1. Greater penalties can also apply for multiple alcohol or drug violations within a 10-year period.
2. Surcharges are added to misdemeanors ($160) and felonies ($270).
3. The driver license penalties for drivers under the age of 21, and for drivers of commercial motor vehicles and other professional drivers, are different.
4. Three or more alcohol or drug-related convictions or refusals within 10 years can result in permanent revocation, with a waiver request permitted after at least 5 years.
5. A driver with an Aggravated DWI violation conviction within the prior 10 years will receive a minimum 18-month revocation if convicted of DWI, DWAI/Drugs or DWAI/Combination. Also a driver with a prior DWI, Aggravated DWI, DWAI/Drugs or DWAI/Combination with the prior 10 years will receive a minimum 18-month revocation.

Can I get a conditional license if I was convicted of DWI or DWAI?
If you receive your first conviction for DWI or DWAI and you participate in the Drinking Driver Program (DDP), you can receive a conditional license. The DMV determines if you are eligible for the DDP. A judge can stop your enrollment in the DDP. To get complete information read the DMV brochure, The Drinking Driver Program.

The law mandates participation in the DDP, even if the driver is not eligible for a conditional license, for convictions of specific alcohol or drug-related violations, or in specific plea-bargaining situations.

Christopher D. Galiardo
MYERS & GALIARDO LLP

We often come across cases in which the client was “in the wrong place at the wrong time”.  Perhaps the most glaring example of poor timing is being present in a location when the police issue a search warrant looking for contraband.  Assuming the warrant was not fraudulently obtained, the court has sanctioned the search. If the police find contraband while your client is standing there, he will likely be arrested. But is mere presence sufficient probable cause to justify the arrest in such circumstances?  And, if not, does your client have a viable false arrest claim?  Often, the answer will turn on specific facts, the foremost being whether the location is open to the public or private. 

 The threshold issue in any claim of false arrest, is whether the arresting officers had probable cause to arrest the Plaintiff.  That is, a person’s confinement is otherwise “privileged” when probable cause exists to arrest him. Covington v. City of New York, 171 F.3d 117, 122 (2d Cir. 1999).  The defendant bears the burden of demonstrating that the arrest was justified based upon probable cause.  Raysor v. Port Authority of New York & New Jersey, 768 F.2d 34 (2d Cir. 1985).  To meet this burden, however, the defendant must demonstrate evidence which amounts to “more than a rumor, suspicion, or even a strong reason to suspect.”  United States v. Fisher, 702 F.2d 372, 375 (2d Cir. 1983) [emphasis added].  Moreover, the evidence of guilt must be particularized to the individual being arrested.  See, e.g., Ybarra v. Illinois, 444 U.S. 85, 91 (1979).

 The fact that a client was arrested pursuant to the execution of a search warrant is not determinative on the issue of probable cause.  Barr v. County of Albany, 50 N.Y.2d 247, 255 (1980) (“while it can be said that a search warrant sanctions the entrance by law enforcement officers upon private property to conduct a search within the confines of the warrant, it by no means lends judicial approval to the arrests of those persons found thereon”).  That is, a search warrant does not authorize an arrest.  Id.  In Barr, the police executed a search warrant of a premise and arrested virtually all fifty persons present for marijuana possession.  The charges were dismissed against plaintiffs and they brought  subsequent claims for false arrest.  The court denied defendant’s motions for summary judgment holding that the search warrant did not immunize the officers for liability for false arrest.  Id.

 In Ybarra v Illinois, 444 U.S. at 85, the police obtained a warrant to search a tavern where the bartender was suspected of drug activity.  While executing the warrant, the police conducted pat-down searches of the tavern patrons, including Ybarra.  The police found drugs on Ybarra and arrested him.  The Court held that a “person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Id. at 91; citing, Sibron v. New York, 392 U.S. 40, 62-63 (1968) [emphasis added]. 

 Likewise, in Flores v. City of Mount Vernon, the police officers executed a search warrant at a bar where the tavern owner was reportedly selling drugs.  41 F. Supp 439 (S.D.N.Y. 1999).  The police found certain patrons in possession of cocaine at the tavern.  One of these patrons was seen picking up a packet of what appeared to be cocaine from the bar.  The officers observed another patron dropping a packet of cocaine on the floor.  More cocaine and marijuana was found hidden in the basement of the establishment.  In addition to the patrons, the police arrested the bartender, Flores, who was present and working at the time the warrant was executed.  Ultimately, Ms. Flores was not charged and brought a claim of false arrest against the officers and municipality.  The Court found that the fact that half the patrons in the bar possessed cocaine did “not give rise to a reasonable suspicion that [Flores] was involved in drug activity, let alone rise to the level of probable cause”.  Id. at 443 [emphasis added].  Further, the fact that patrons dropped narcotics to the floor in plain view did “not admit the inference” that they obtained them from plaintiff. Id. at 444. 

 In Flores, the arrest occurred in a public forum.  What if your client was arrested in a private residence?  Assume your client was an invited guest watching television when the police executed a search warrant targeting the owner of the apartment.  The drugs found in the apartment were not in plain view and were not in proximity to your client.  Your client was not a resident of the apartment and there was nothing connecting him to the apartment.  Nor was there anything about his conduct which indicated a common scheme with the other occupants of the apartment. There is an argument to be made that the circumstances of Flores (cocaine literally flying in the air in the proximity of claimant) were far more egregious than those described above.      

 Pursuant to applicable New York search and seizure law, one may argue there was no probable cause for the police officers to arrest your client.  It is not alleged that your client directly possessed drugs.  The only remaining means to assert his “possession” are (i) the application of a “room presumption”; or (ii) the theory that he “constructively” possessed the drugs.  Since the alleged contraband was not in “plain view” the police were not permitted to arrest all the occupants based upon a permissive “room presumption”.  See, N.Y. Pen. L. 220.25(2) (the presence of a narcotic drug in “open view in a room other than a public place . . . is presumptive evidence of knowing possession thereof by each and every person in close proximity” to the drugs) [emphasis added]; see, e.g., People v. Martinez, 83 N.Y.2d 26 (1993) (drugs concealed between a couch and a wall are not in plain view).  Furthermore, it can not reasonably be argued that your client “constructively possessed” the drugs hidden in the apartment.  To demonstrate constructive possession it must be shown that a person exercised “dominion or control” over the property by a sufficient level of control over the area in which the contraband is found.  See, e.g., People v. Manini, 79 N.Y.2d 561 (1992).  There is no evidence that your client resided in the location; had keys to the location; or had any personal property in the location.  Further, since the evidence will likely show that other persons had access to the location and the drugs were hidden, a viable theory of constructive possession will not stand.  People v. Vasquez, 160 A.D.2d 751 (2d Dept. 1990) (constructive possession not established where defendant was watching television in the living room of an apartment where 4 ounces of cocaine and $150,000 in cash were discovered in a bedroom pursuant to a search warrant, despite the defendant having a loose key to the apartment in her possession); People v. Webb, 179 A.D.2d 707 (2d Dept. 1992); People v. Bailey, 159 A.D.2d 1009 (4^th Dept. 1990). 

 Based upon the foregoing, one can certainly make a viable argument that the search warrant and discovery of contraband does not confer probable cause to arrest a visitor on the circumstances described.  Still, it may not be a winning argument and one will find far stronger footing in a False Arrest claim if the “unlawful” arrest took place in a public, rather than private, forum.

Often in contentious litigation, the opposing party will “lose” or “misplace” a document within their control which you have requested in the course of discovery and reasonably believe is important to establishing your case. As a litigant, one must overcome this “stone walling” tactic and turn it against the offending party. To do so, one should consider making a SPOLIATION claim to strike the opposing party’s pleadings.

Spoliation is the destruction or failure to preserve evidence which may be of use in pending or reasonably foreseeable litigation. Traveler’s Indemnity Co. v. CC Controlled Combustion, 2003 NY Slip Op. 5134(U).  The duty of a party to preserve evidence or face sanctions under CPLR 3126 is well established.   See, e.g., MetLife Auto & Home v. Basil Chevrolet, 303 A.D.2d 30 (4th Dep’t 2002). Penalties for failure to comply with disclosure requests are governed by CPLR 3126 and provide that a party’s failure to preserve critical evidence may be deemed spoliation.  The obligation to preserve evidence is borne of a concept of fundamental fairness and, indeed, is a precept of our legal system. “Relevant evidence is critical to the search for truth. The intentional or negligent destruction or spoliation of evidence cannot be condoned and threatens the very integrity of our judicial system.” Ortega v. City of New York, Sup. Co., Kings County, Hon. Martin M. Solomon, Index 22913/2004 (decided February 16, 2006), quoting, Oliver v. Stimson Lumber Company, 297 Mont. 336, 334 (1999) [emphasis added].

The Court has sound discretion in determining the appropriate sanctions for spoliation.  Iannucci v. Rose, 778 N.Y.S.2d. 525 (2nd Dept. 2004).  The proposed penalties under CPLR 3126 are not exhaustive, DiDomenico v. C&S Aeromatik Supplies, 252 A.D.2d 41, 49 (2d Dep’t 1998), but may include the significant remedy of striking the offending party’s pleading. Even if the evidence in question was destroyed before the offender became a party, sanctions are still appropriate if the offender was on notice of the potential for litigation or reasonably could have anticipated litigation. Langer v. Well Done, Ltd, 112 Misc.3d 1056(A), 815 N.Y.S.2d 494 (2006); Mudge, Rose, Guthrie, Alexander & Ferdon v. Penguin Air Cond. Corp., 221 A.D.2d 243 (1st Dep’t 1995). That is, if the spoliator knew that the evidence “might be needed” for future litigation, he was under a duty to preserve it. Lowell v. USA, Inc. d/b/a USA Empire Roller Skating Center, 28 A.D.3d 721 (2d Dep’t 2006).

The sanctions for spoliation may be severe. The severity is often measured by the sound discretion of the court in light of the prejudice to the party for whom the evidence is not available. DiDomenico, supra, 252 A.D.2d at 41, 49 (2d Dep’t 1998). In DiDomenico, the Appellate Division found that where the lost or destroyed evidence limits or precludes a party from presenting their claim with “incisive evidence”, “the spoliator’s pleading is properly stricken in order to obviate a trial that is ‘based on rank swearing contests’”.

Moreover, the moving party need not establish that the offending party acted in bad faith. Courts are clear that whether the evidence at issue was lost or destroyed either through ill will or negligence, the prejudicial effect is the same. “[W]hen a party alters, loses or destroys key evidence before it can be examined by the other party’s expert, the court should dismiss the pleadings of the party responsible for the spoliation … Spoliation sanctions … are not limited to cases where the evidence was destroyed willfully or in bad faith…” Squitieri v. City of New York, 248 A.D.2d 201, 202-203, 669 N.Y.S.2d 589 (1st Dept. 1998) [emphasis added]; see, also, Mudge, Rose, supra, 221 A.D.2d at 243 (1st Dep’t 1995); Yi Min Ren v. Professional Steam-Cleaning, Inc., 271 A.D.2d 602, 603 (2d Dep’t 2000) (“Where a crucial item of evidence is lost, either intentionally or negligently, the party responsible should be precluded from offering evidence as to its condition”).  To justify striking of the pleading absent bad faith on the spoliator, however, the court may require the moving party to demonstrate the prejudice as a result of the lost or missing evidence.  See, e.g., Barone v. City or New York, 861 N.Y.S.2d 709 (2nd Dep’t 2008).

For example, the loss of an “Incident Report” made out by a party defendant which presumably details the facts, circumstances and witnesses to an incident, is potentially significant prejudicial to the Plaintiff. Such a report, which is prepared by defendant personnel, may contain the identities of any witnesses to the incident and statements of their respective accounts of the accident. Those witnesses may very well have provided testimony which is favorable to the Plaintiff. The Plaintiff is prejudiced by the non-disclosure of this report.

Recent lower court decisions have also struck pleadings based upon the destruction of evidence. In McRae v. Lackman Culinary Services, Inc., (236 NYLJ Sup. Ct. Nassau Co., 11/6/06), a motor vehicle accident case in which a pedestrian was hit by a van while crossing an intersection, the court struck defendant’s answer because the defendant had failed to preserve a critical log book which would have helped determine whether its van had been in use on the date of the accident. Even though production of the log book was not requested prior to its destruction, the court held that the defendant was on notice “that the evidence may be needed for future litigation” and that plaintiff was prevented from proving her case with “incisive evidence”.

An aggressive litigant should not accept a defendant’s representation that a critical item of evidence has been lost or simply rely upon an instruction at trial regarding lost evidence. The proof of one’s case may be significantly damaged by the loss of such evidence and, justly, there are severe remedies that may be imposed against the offending party. One is not required to show that they are unable to prove their claim in absence of the evidence, simply that the lost materials potentially rob the litigant of proof by “incisive” evidence. The loss and/or destruction of such valuable evidence, whether in good faith or not, should be met by the appropriate sanction of striking a Defendant’s Answer.