2011-12-23 / Columnists

Sullivan’s Court

Commentary By Keith Sullivan

Keith Sullivan is a partner with Sullivan & Galleshaw, LLP and an adjunct law professor at Pace University School of Law and Brooklyn Law School and a lecturer for the NYS bar exam. He can be seen frequently providing legal analysis on various national and local networks such as FOX News, CNN, HLN, NBC and MSNBC. You can e-mail your questions for Sullivan to SullivansCourt@gmail.com.

Q. My son was recently arrested for a DWI. I know he was wrong but he only had a few beers and was not falling down drunk or asleep at the wheel. He had no passengers in the car and did not hurt anyone or crash the car. He was arrested at a checkpoint where he admitted to having a few beers. At the precinct he blew a .13. I’m hoping this can just be dismissed or reduced since it is his first offense. What should I do to make sure this does not mess up his future job opportunities? He really is a nice boy, never gets in trouble and doesn’t deserve this. —Joan B.

A. Dear Joan, With the utmost of respect, I think you and your son …need a reality check! Your son made a critical mistake and is being charged with a serious crime. This is not something that will simply go away because your son is a “nice boy.” It is important that you retain competent counsel immediately. This year, across the country 10,840 people will die in drunk-driving accidents. Said another way, every 50 minutes a life will be lost because someone chose to operate a vehicle after they were drinking. The overwhelming majority of those fatalities were not caused by fall down drunks or drivers asleep at the wheel! Drinking and driving is no small matter.

The New York State Driving While Intoxicated statute contains various offenses. The least serious is Driving While Ability Impaired (DWAI). This can be proven with a blood alcohol concentration between .05 to .07%. DWAI is a traffic infraction, not a crime. DWAI is an offense to which the more serious charge of Driving While Intoxicated (DWI) is sometimes reduced. On a first offense the penalty can be a fine up to $500, up to 15 days in jail, a 90 day driver’s license suspension, mandatory attendance in a multi-week anti-drinking and driving program and several hundred dollars in fines and surcharges from the DMV.

Your son is charged with a DWI, which is the offense of operating a car with a blood alcohol concentration .08% or more. This is a criminal misdemeanor punishable on a first offense with a fine up to $1,000, up to one year in jail, a 6 month license revocation, mandatory attendance in a multi-week anti-drinking and driving program, several hundred dollars in fines and surcharges from the DMV and an ignition interlock device – essentially a breathalyzer lock on your car’s steering column that you have to pay for.

If the BAC is .18% or higher; if children are in the car or if there was an accident involved, the penalties increase. If the driver holds a commercial driver’s license and the BAC was .04% or higher, that commercial license is suspended for one year. Most District Attorneys’ Offices will not offer a reduction to the non-criminal offense of a DWAI if the person had a BAC over .13%, if the driver refused to take the breathalyzer test or if there was an accident.

As with any criminal charge, the State bears the burden of proving the charge against your son. Due to increased political and social intolerance towards those who drink and drive, DWI charges have become more complicated in the past few years and the penalties upon conviction have become more severe. The bottom line …your son is one of the lucky ones whose night did not end in a serious accident or kill him or some innocent victims. I hope this is a wake-up call to him and those who know him, just don’t drink and drive, ever. In the end, this DWI charge can leave your son with a criminal conviction and after legal fees, court fines, DMV penalties and program expenses, cost him as much as $10,000 … I bet that $30 cab fare is looking like a real bargain now!

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