Law Answers from Our Firm

Frequently Asked Questions

We are here to provide the representation you need! In the area of criminal law, there are often many questions that go unanswered. On this page, our firm has endeavored to answer some of the most commonly questions for you.

Should I answer questions?

No, you should not answer any questions until you have contacted a legal professional. If you answer questions without talking to a legal representative, your words are more likely to be twisted.

Do the police ever lie?

Unfortunately, it is possible that the police sometimes lie. Although this is a sad fact, it is important that you are aware of it so you can protect yourself. Know your rights, and contact a qualified legal professional.

Should I let the police search my home?

You should know that it is your constitutional right to refuse to allow anyone to search your home unless they have a warrant. If police enter your home without your permission or a warrant, you have grounds to protest the admissibility of any evidence found in your home.

How much can I drink before it affects my driving ability?

Any amount of drinking will affect your judgment and coordination, and reduce your ability to judge distances, speeds and angles. The degree of impairment depends on four basic factors:

  • The amount you drink.
  • Whether you’ve eaten before or while drinking (food slows absorption).
  • Your body weight.
  • The length of time spent drinking.

No one should consume alcohol and drive. Everyone’s safe driving ability deteriorates after drinking. Some people, especially young drivers, lose their driving skills even more quickly. This is why New York State law makes it illegal for any driver or passenger to possess an alcoholic bev­erage with intent to consume. This is commonly called the “open container” law. It is also illegal to purchase an alcoholic beverage if you are under 21 years old.

What is the quickest way to sober up?

The only way to reduce your BAC after drinking is to wait for your body to me­tabolize (eliminate) the alcohol – and that takes several hours. Your body metabolizes about one drink each hour. Coffee will not sober you up. Neither will a walk or cold shower. They may make you feel more awake but you will be just as impaired, and it will be just as dangerous for you to drive.

What should I do if I drink too much?

The only way to reduce your BAC after drinking is to wait for your body to me­tabolize (eliminate) the alcohol – and that takes several hours. Your body metabolizes about one drink each hour. Coffee will not sober you up. Neither will a walk or cold shower. They may make you feel more awake but you will be just as impaired, and it will be just as dangerous for you to drive.

What are the chances of being caught if I drive after drinking alcohol?

Greater than ever before. Drinking driv­ing enforcement and prosecution are more effective as a result of New York State’s STOP-DWI law. The law returns drinking driving fines to counties that use the money to operate programs for drinking driving enforcement, prosecution, adjudication, and education. Every county in New York State has a STOP-DWI program. This results in more police with better equip­ment on the roads looking for drinking or impaired drivers, more district attorneys prosecuting them, and more judges hearing drinking driving cases.

What will happen to me if I am stopped by the police?

If you are stopped by a police officer who believes you are under the influence of alcohol or drugs, you may be asked to take a “field sobriety test” which may include a breath-screening test for the pres­ence of alcohol. If you are arrested, you will be asked to take a “chemical test” for BAC. You may also be fingerprinted.

Driving While Intoxicated (DWI) is a crime. If you are convicted, you will face a sub­stantial fine, a mandatory surcharge, license revocation, higher insurance premiums, and a possible jail sentence.

What is blood alcohol content (BAC)?

BAC (Blood Alcohol Content) is a measure of the concentration of alcohol in a person’s blood.

Are license penalties the same for all age groups?

No. If you are under 21, your driver license will be revoked for one year if you are convicted of DWI or DWAI that occurred in New York State, or in any other state or a province of Canada. If you are found to have refused to take a chemical test in New York State, even if not convicted of DWI or DWAI, your license will be revoked for one year.

If you commit a second such offense while you are under 21, your license will be revoked for at least one year or until you are 21, whichever is longer.

If you enroll in the Drinking Driver Program (DDP) and receive a conditional license, your license will remain in condi­tional status for the original full period of revocation.

Your driver license or privilege of applying for a license will also be suspended if you are found guilty of using a New York State Driver License or Non-Driver Identification Card as proof of age to illegally purchase alcoholic beverages.

What about commercial drivers?

Compared to other drivers, every driver holding a Commercial Driver License (Class A, B, or C) is held to stricter Blood Alcohol Content (BAC) standards, and faces tougher penalties, while operating a vehicle that requires a CDL license. A single conviction for DWI, DWAI, or having a .04 percent or higher BAC re­quires a minimum 1-year revocation of the driver’s license (3 years, if driving a vehicle that requires hazardous materi­als placards). A second conviction within the driver’s lifetime results in permanent revocation, with a possible waiver after 10 years. A third conviction results in a per­manent revocation without any possibility of ever getting it back. Drivers who hold a commercial license should review the Commercial Driver’s Manual (CDL-10), available at motor vehicle offices, for ad­ditional information about penalties that apply to them.

What is the "zero tolerance" law?

This law makes it illegal for a driver under age 21 to have consumed any alcohol. A po­lice officer may temporarily detain you to request or administer a chemical test to de­termine your Blood Alcohol Content (BAC). If your BAC is .02 to .07 percent, you will be notified to appear at a DMV hearing. If the judge’s finding supports the charge, the penalty is a 6-month license suspension, a $125 civil penalty, and a $100 suspension termination fee. Each additional offense will result in your license being revoked for at least one year or until age 21, whichever is longer, plus a $125 civil penalty, and a $100 license re-application fee.

NOTE: If your BAC is .05 percent or greater, the police may charge you with driving while ability impaired (DWAI) or driving while intoxicated (DWI), and may prosecute your arrest in criminal court.

Is it possible to "plea bargain" to avoid a conviction for drinking and driving?

No, the law generally prohibits a plea to a non-alcohol or drug-related violation.

What will happen if I refuse to take the chemical test?

If you refuse a chemical test for BAC (Blood Alcohol Content), your license will be suspended at arraignment in court, and revoked for at least one year (second of­fense, 18 months) at a Department of Motor Vehicles hearing (Refusal Hearing) if you lose that hearing. You will also be subject to a civil penalty of $500 (second offense, $750). A driver under 21 years old who re­fuses to take a chemical test under the Zero Tolerance Law is subject to a 1-year license revocation and a $125 civil penalty. The penalties and fines for refusing to submit to a chemical test are separate from, and in addition to, the penalties and fines for alcohol or drug-related convictions.

What is "Leandra's Law"?

Leandra’s Law was signed into law on November 18, 2009 in honor of Leandra Rosado. Leandra was an 11-year old killed while she rode in a vehicle with the intoxicated mother of one of her friends. In response to this tragedy, the NYS Legislature made several changes to the Vehicle and Traffic Law (VTL). The law strengthened the penalties against motorists who drink and drive, and requires that:

  •  any person sentenced for Driving While Intoxicated on or after August 15, 2010 must have an ignition interlock device installed on any vehicle they own or operate
  • the driver will have an “ignition interlock” restriction added to their driver license

What are the different parts of Leandra's Law and what are the penalties for conviction?

Leandra’s Law includes the following provisions:

Aggravated DWI/Child in Vehicle

The law established a new Class E Felony. The law states that no person shall operate a motor vehicle under the influence of alcohol or drugs while a child who is 15 years of age or younger is a passenger in the vehicle.

Ignition interlock requirement

A court must sentence a person convicted of either Aggravated DWI/Child in Vehicle or Aggravated DWI/Driving with a Blood Alcohol Content (BAC) of .18 or More to a period of probation or to a conditional discharge. The court must require the installation and use of an ignition interlock device in any motor vehicle owned or operated by a person convicted under this law. The ignition interlock device must remain in the vehicle for at least 12 months, unless otherwise permitted by the court.

A court that sentences a person for a Driving While Intoxicated conviction on or after August 15, 2010 must impose a conditional discharge or probation, and a condition of the sentence must be the installation and use of an ignition interlock device in any motor vehicle the person owns or operates. The ignition interlock device must remain in the vehicle for at least 12 months, unless otherwise permitted by the court.

What is the "ignition interlock" program?

Any driver convicted of misdemeanor or felony drunk driving charges – even first-time offenders – are required to install and maintain ignition interlock devices at their own expense on any vehicles they own or operate. For an Aggravated DWI offense or any repeat alcohol or drug offense within five years, a judge is required to order the system installed on each vehicle owned or operated by the motorist during both the revocation period and any probation period that follows. The judge also must order an alcohol assessment for the repeat offender.

The device, purchased and installed at the expense of the motorist, is connected to a motor vehicle ignition system and measures the alcohol content of the operator’s breath. As a result, the vehicle cannot be started until the driver provides an acceptable sample breath. The motorist may be quali­fied to hold a conditional license during the time an interlock device is in use. This conditional driver license will be revoked if the motorist does not comply with the court terms or for conviction of any traffic offense except parking, stopping or standing.

What is an "ignition interlock device"?

An ignition interlock device connects to a motor vehicle ignition system and measures the alcohol content in the breath of the operator. The device prevents the vehicle from being started until the motorist provides an acceptable breath sample.

If ignition interlock is ordered by a court, the system must be installed on each vehicle the motorist owns or operates. The device must remain installed for at least six months. The ignition interlock restriction will be added to the driver license record even if the license is revoked. The restriction will appear on the back of the driver license document as “interlock device”.

How does an interlock device work?

Before a vehicle’s motor can be started, the driver must exhale into an ignition interlock device (IID) also known as a breath alcohol ignition interlock device (BAIID). If the driver’s blood alcohol concentration (BAC) is .025 percent or higher the engine will not start.

Couldn't the individual under supervision bypass the interlock simply by having someone else breath into the device to get it started and then drive away, or leave the car running while they are in a bar and drinking?

No. At random intervals after the engine has been started, the device will require additional breath samples. If a sample is not provided or if the blood alcohol concentration is .025 percent or higher, the device will record the event, warn the driver and then start an alarm (horn honking and/or a loud interior alarm) until either the ignition is turned off or a clean breath sample is provided. Additionally, some of the devices have built-in cameras and keep a photographic record of who provides the breath sample.

Who will install the device?

When someone is convicted of impaired driving and ordered to have an interlock installed, he or she will be referred by local ignition interlock monitors to manufacturers and their installation service providers designated by the state.

What do ignition interlock devices cost and who will pay for it?

The cost depends on the vendor and the level of ignition interlock service, but generally costs approximately $100 for installation, $100 for de-installation and a monthly fee of $100. In general, it is the responsibility of the convicted drunk driver to pay all the fees associated with installing and maintaining these devices.

How do I remove the ignition interlock restriction from my driver license?

Your ignition interlock monitor must give you a form that states that you are no longer required to install and maintain the ignition interlock device in motor vehicles you own or operate. You must take this form to a local DMV office and apply for a new document without the restriction.

What is the National Driver Register?

The National Driver Register (NDR) is a database maintained by the Federal government. The NDR lists

  • the drivers from each US state who have a driver license that is suspended or revoked, and
  • the drivers who were convicted of a serious traffic violation like DWI or a drug-related violation

Motor vehicle bureaus in the US provide the NDR with the names of persons who lose the privilege to drive or who were convicted of serious traffic violations. When a person applies for a driver license, the motor vehicle bureau will search for the name in the NDR. If a person was reported to the NDR as a problem driver, the driver cannot get a driver license without obtaining clearance from the state that issued the suspension or revocation.

You can check if there is information about your driving record on the NDR files, whether this information has been disclosed to anyone and to whom it was disclosed. To request this information, you must submit an Individual’s Request for National Driver Register File Search form (NDR-1).

You can get more information about the NDR at the National Highway Traffic Safety Administration website

What are the new regulations that took effect on September 25, 2012 that affects drivers with multiple alcohol/drugged-driving related convictions or incidents?

The highlights of how these changes affect persons applying for a driver license after their license is REVOKED are provided below.

  • Applicants with three or four alcohol/drugged-driving related convictions or incidents within a 25 year period, without a serious driving offense and whose revocation does NOT result from an alcohol or drugged driving conviction or incident, will be denied relicensing for two years in addition to the statutory revocation period, and then will be relicensed with a problem driver restriction for two years. A serious driving offense is a fatal accident, a driving-related penal law conviction, conviction of two or more violations for which five or more points are assessed, or 20 or more points from any violations.
  • Applicants with three or four alcohol/drugged-driving related convictions or incidents within the preceding 25 years, without a serious driving offense and whose revocation DOES result from an alcohol or drugged driving conviction or incident, will be denied relicensing for five years in addition to the statutory revocation period, and then will be relicensed with a problem driver restriction for 5 years with an ignition interlock.
  • Applicants with three or four alcohol/drugged-driving related convictions or incidents within the preceding 25 years, with a serious driving offense will be permanently denied a driver license, unless there are compelling or extenuating circumstances.
  • Applicants with five or more alcohol/drugged-driving related convictions or incidents on their lifetime driving record will be permanently denied a driver license, unless there are compelling or extenuating circumstances.

Applicants with two or more alcohol/drugged-driving related convictions or incidents within the preceding 25 years will be required to serve their entire sanction period (suspension or revocation) even if they complete the Drinking Driver Program (DDP) and will be required to submit proof of rehabilitation.

What happens if I am not eligible for a conditional or restricted license?

You must serve the entire term of your suspension or revocation and then reapply to the DMV for a new driver license.

What is required to apply for a new license after revocation?

You must submit a completed Application for Driver License or Non-Driver ID Card (MV-44) and a non-refundable $100 fee to:

Driver Improvement Unit
NYS DMV
6 Empire State Plaza, Room 338
Albany, NY 12228
PHONE (518) 474-0774, Option #5 (Phone Hours: M-F, 8:30 – Noon)
FAX (518) 474-6208

The Driver Improvement Unit (DIU) will make a determination based on your entire driving record, and a response will be mailed to you. The response will include instructions about your next steps.

Can some drivers have their full privileges restored at their local DMV office?

Yes, the following drivers who hold a conditional license can continue to visit a DMV office for restoration of their driving privileges

  • a driver with two alcohol/drugged-driving convictions or incidents within the previous 25 years who has completed the DDP and has served the entire suspension or revocation period, or
  • a driver with one alcohol/drugged-driving conviction or incident within the previous 25 years who has completed the DDP

If I have a conditional license based on one alcohol/drugged-driving conviction or incident, must I serve the minimum suspension or revocation period?

If there is only one alcohol/drugged-driving conviction or incident on your record, you can receive or apply for a new driver license without the need to serve the full revocation period if you first complete the DDP.

What happens if I have a conditional or restricted license and I drop out of the DDP?

Your conditional or restricted license will be revoked. After a review of your driving record, you may be eligible to re-enroll in the DDP and have your conditional or restricted license re-issued.

What happens if my driver license application is denied at the local DMV office?

You can submit a completed Application for Driver License or Non-Driver ID Card (MV-44) and a non-refundable $100 fee to:

Driver Improvement Unit
NYS DMV
6 Empire State Plaza, Room 338
Albany, NY 12228
PHONE (518) 474-0774, Option #5 (Phone Hours: M-F, 8:30 – Noon)
FAX (518) 474-6208

The Driver Improvement Unit (DIU) will make a determination based on your entire driving record, and a response will be mailed to you. The response will include instructions about your next steps.

What happens if my application is denied by the DIU?

Follow the instructions in the denial letter from the DIU.

What happens if my application is approved by the DIU?

Follow the instructions in the approval packet response from the DIU.

How can I get a copy of my full lifetime driving record?

To get a copy of your full lifetime driving record, you must submit a Freedom of Information Law request using a Freedom of Information Law Request Form (MV-15F).

If you have any more questions, please don’t hesitate to contact us at 585-658-2161.

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