New York City DUIs: Frequently Asked Questions

Tips from local DUI attorneys

By David Levine | Reviewed by Canaan Suitt, J.D. | Last updated on July 12, 2023 Featuring practical insights from contributing attorneys Steven B. Epstein, Matthew Weiss, Karl C. Seman and Daniel A. McGuinness

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New York City is different from the rest of the state—and the rest of the world, for that matter—in countless ways.

One of those ways is how the city deals with drunk driving. 

What Are the Penalties for Driving Under the Influence in NYC?

There is less tolerance for drunk driving all over the country, including the city.

“Penalties are more severe than ever,” says vehicle and traffic attorney Matthew Weiss with Weiss & Associates. “The pendulum has swung from a slap on the wrist to sometimes jail time, even for first offenders.” 

That said, the consequences may depend on which borough you’re in. 

“The policies are different; evidence collection is different; court practices are different; the volume of cases is different; they are different in just about every imaginable way,” says Steven B. Epstein, at Barket Marion Epstein & Kearon. “Each borough has its own supervisor, who sets policies.” 

Solo attorney and former NYC prosecutor Michael S. Weinstock adds: “Manhattan cases are especially unique because juries in Manhattan consider all people who drive cars in the city to be selfish clowns and love to punish people for driving in Manhattan. Queens and Brooklyn are the most reasonable, though drunk driving cases are taken quite seriously.” 

A DUI arrest can change your life forever, so be very careful mixing drinking and driving. Get an Uber, use a designated driver. If you don’t, the consequences are epic.

Steven B. Epstein

Can Officers Make Me Take a Breath Test?

Portable breath-testing devices have been around in some form for more than 90 years—dating all the way back to biochemist Rolla Neil Harger’s “Drunkometer” in 1931—and most people have opinions on them. 

With the modern breathalyzer, for example, conventional wisdom suggests that you should never agree to submit to the test. But DUI/DWI attorneys say it’s more complicated than that.

The idea that you should never take it is “a myth, like the Loch Ness Monster,” says Epstein. “Unfortunately, it’s a myth that can hurt people.”

Penalties are more severe than ever. The pendulum has swung from a slap on the wrist to sometimes jail time, even for first offenders.

Matthew Weiss

New York’s Implied Consent Law

Here’s why: In New York State, there are “implied consent” laws that require a driver to submit to a chemical test—a breath, urine, saliva, or blood test—to determine the amount of alcohol or drugs in the driver’s body if the police officer has probable cause to believe the driver is intoxicated.

Law enforcement officers also use standardized field sobriety tests to determine probable cause, and one of those is the preliminary breath test (PBT). Failure on the preliminary tests will lead to a chemical blood alcohol content test, Epstein says—as does refusal to take them.

Unless you are in a serious accident in which someone is injured or killed, you have the right to refuse the chemical test, which is often the breathalyzer test. However, doing so can cause you to lose your license for a year—or longer if you already have a DWI conviction on your record—regardless of whether you are eventually found guilty of DWI.

There may also be fines and court costs.

I suggest that, prior to taking the test, you contact an attorney. In New York state, failure by law enforcement to give reasonable access to an attorney for legal advice before the test can result in dismissal of the case.

Karl C. Seman

How Do I Decide Whether to Take a BAC Test?

Attorneys say that doesn’t mean you should always take the chemical test, either. Other factors—such as whether an accident occurred, if you have a prior record, and the timing and amount of alcohol and food you’ve consumed—must be considered.

Even if you fail a test, an attorney can make credible arguments on your behalf that the results are not sufficient to prove a DWI charge. “No one answer fits all” situations, says Karl C. Seman, of Grunwald & Seman.

He recommends asking yourself the following five questions if you are asked to take a chemical:

  1. Was there an accident?
  2. Were you driving dangerously?
  3. Do you have prior DWIs?
  4. What time was your last drink, and how much did you drink?
  5. At what time and how much did you eat?

If you are sure you are innocent and sober, take the test, Epstein adds. “They will release you, and you will save a lot of time and expense.”

However, “if you know you will fail the test at a level well above the legal limit of .08, it is generally not a good idea to submit,” he says. “It is very strong evidence against you, and in New York, if you are above .18, the punishment goes up.”

You have the right to speak to an attorney before you blow, [but] it is a very limited right. The police aren’t going to reach out to legal aid for you. You have to have an attorney you can dial up 24/7.

Daniel A. McGuinness

Should I Contact a Lawyer Before Taking a BAC Test?

“You will be asked, often in a firm manner that appears to you—a reasonable, innocent person—that you must take the test,” says Seman. “You are not required to. I suggest that, prior to taking the test, you contact an attorney. In New York state, failure by law enforcement to give reasonable access to an attorney for legal advice before the test can result in dismissal of the case.” 

However, while “you have the right to speak to an attorney before you blow, it is a very limited right,” says Daniel A. McGuinness, a DWI lawyer in New York City. “The police aren’t going to reach out to legal aid for you. You have to have an attorney you can dial up 24/7.”

Experts in DWI defense have 24-hour hotlines. “If the phone rings at 3 a.m., I pick up,” says Seman. “We are not trying to beat the machine and game the system. All you want is a fair shake.”

If you are unable to call an attorney, opinions vary on if and when you should go ahead and take the field test, but Seman says the end result is usually the same. “You will get arrested either way,” he says. Upon arrest, suspects are taken to that borough’s Intoxicated Driver Testing Unit. If you haven’t already done so, attorneys say this is the time to consult a lawyer.

“Once you are read your rights, you do not have to answer any questions,” Weiss says. “My advice is to say, ‘I will talk as soon as my lawyer gets here.’ You cannot help yourself by talking in most instances, so keep your mouth shut.” 

How Do I Find an Experienced DUI Defense Attorney?

The best advice of all, of course, is to not take chances with alcohol. “A DUI arrest can change your life forever, so be very careful mixing drinking and driving,” Epstein says. “Get an Uber, use a designated driver. If you don’t, the consequences are epic.” 

If you are facing DUI charges, consider contacting an attorney as soon as possible. Search the Super Lawyers directory for New York DUI attorneys in your area.

If you’d like more general information about this area of the law, see our DUI/DWI law overview.

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