DWI Arrests, Chemical Tests and Your Qualified Right to Call an Attorney

January 20, 2017

You see the red and blue flashing lights quickly coming up behind you.  You stop breathing for a second.  He’s not coming for you…is he?  Sonafa…he IS coming for you. Your heart and stomach immediately flip flop and you start to panic.  Wait.  You’re good, you only had 1 drink.  OK, so it was really 2.  But it was light beer!  You’re fine to drive.  At least you thought you were when you left the restaurant. But now…who knows?!  Oh my god!!  What if I get arrested for DWI?  What will happen to my wife/friends/dog in the car with me?  What will happen to my car?  What if someone I know drives by and sees me getting arrested?  Am I going to jail?  Will there be bail?  Can I afford bail? How long will I stay in jail??  Will I be out in time for work tomorrow?  What will I tell my parents? My friends?  My boss!?!?  Am I going to lose my job?!  If I lose my job, I’ll lose my house!  OH MY GOD I’M GOING TO BE HOMELESS!!!!!

     Although your brain initially went from happy to homeless in less than 0.2 seconds, that sort of torture will likely continue during the entire arrest process; only now you have the added agony of sitting in a police station with cold metal handcuffs securing you to a bench, like you’re a dog.  And at the height of your panic, when you couldn’t possibly be thinking any LESS clearly, the cop reappears and asks you what might be the most important question you’ll be asked all night, “will you take a chemical test?” You’re already not thinking clearly, so whatever, you say, why the hell not

     The results of a chemical test can be the most – and in some cases the ONLY – damaging evidence the People will have against you.  So why just hand it over to them?  Maybe we need to think about that decision a little more.  But you’re not a lawyer.  You don’t know what any of this stuff means or how it works.  And if the cops are playing fair, you’ve probably already been advised that by not taking the test you could lose your license for at least a year.  But maybe that’s better than having a criminal conviction for the rest of your life.  Maybe it’s not.  Maybe the odds are good you might come out the other end without a criminal conviction?  Hm, hadn’t thought about that yet…NOW what do you do?!  Your head is swimming! Wouldn’t it be great if you could speak to someone who can help you make the decision?

     Guess what?!  YOU CAN!!  A driver arrested for DWI in New York State has what is referred to as a “qualified right” to speak with an attorney prior to deciding whether to submit to a chemical test to determine the person’s blood alcohol content (BAC).

     In basic terms, that means that if you ask to speak with an attorney before taking the chemical test, the cops must let you if you can do so without substantially interfering with or delaying the administration of the test.  If you are denied that qualified right/opportunity, then subsequent evidence obtained against you may be suppressed.

     Not-so-basically, however, that qualified right is a little more complicated.  In NY, a chemical test must be administered within 2 hours of the arrest (exceptions apply), and your request to speak with an attorney cannot interfere with that rule.  So, if the 2-hour deadline is fast approaching and you still have not been able to speak with an attorney (assuming you timely asked to do so), or you’re waiting for a call back, the police do not have to wait and you will be required to take the test or be deemed a refusal.  Similarly, you will not be allowed limitless time to flip through a phone book calling every attorney listed until you finally reach someone.

     The easiest way to avoid these problems is to have the name and number of an attorney of your choosing available (saved in your cell phone, for example) before you find yourself in this situation in the first place, and ask to call that attorney as soon as possible (at least after being asked to take a chemical test).  No one plans to be arrested for DWI. But it obviously still happens, a lot.  So, take the steps now to protect yourself to the extent possible. Save Catalano & Carpenter LLP in your cell phone right now under “Lawyer” with these numbers, (845) 454-1919 or (914) 512-7641.

     DWI is a serious charge with serious consequences.  You need a serious and experienced DWI defense attorney on your side as soon as possible.  The sooner we get involved the sooner we can help. Call us today, or visit us at www.CatalanoCarpenter.com.