In New York, a person is guilty of a DUI if he or she operates a motor vehicle while his or her ability to operate such a motor vehicle is impaired by the use of a drug, or he or she is impaired by the combined influence of drugs or of alcohol and any drug or drugs. McKinney’s Vehicle and Traffic Law §§ 1192(4)(a).
- Any person who operates a motor vehicle in New York shall be deemed to have given consent to a chemical test of one or more of the following: breath, blood, urine, or saliva, for the purpose of determining the alcoholic and/or drug content of the blood provided that such test is administered by or at the direction of a police officer with probable cause. McKinney’s Vehicle and Traffic Law § 1194.2(a).
- Evidence of a refusal to submit to such chemical test or any portion thereof shall be admissible in any trial, proceeding or hearing based upon a violation of the DUI statute, but only upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal. Id. § 1194.2(f).
- After a refusal, the person’s driving privileges will be suspended for least one year, and will not be restored except by the discretion of the commissioner. In any case where the person has had a prior revocation resulting from refusal to submit to a chemical test no such license shall be restored for at least eighteen months after such revocation, nor thereafter except in the discretion of the commissioner. Id. §§ 1194.2(d)(1),(2).
- After being arrested for DUI, insisting on speaking with attorney before testing constituted a refusal to submit to test. Cook v. Adducci,205 A.D.2d 903(1994).
- The person tested shall be permitted to choose a physician to administer a chemical test in addition to the one administered at the direction of the police officer. McKinney’s Vehicle and Traffic Law § 1194 (4)(6)(b).
- First offense misdemeanor – fine of not less than five hundred dollars nor more than one thousand dollars, or by imprisonment for not more than one year, or by both such fine and imprisonment; six month license revocation. Id. § 1193(1)(b); Id. § 1193.2(b)(2).
- Second offense (w/i 10 years) class E felony – fine of not less than one thousand dollars, but not more than five thousand dollars; imprisonment for a minimum of five days (possible community service in lieu of jail), but not to exceed thirty days, one year license revocation; court may require offender to attend DUI program. Id. § 1193 (1)(c)(i).
- Third and subsequent offense (w/i 10 years) class D felony – fine of not less than two thousand dollars nor more than ten thousand dollars, imprisonment for a minimum of 7 days up to 10 years or by both; the state shall order such person to install and maintain an ignition interlock device in any motor vehicle owned or operated by offender; minimum license suspension for one year. Id. § 1193 (1)(c)(ii)-(iii).
In New York, law enforcement officials are entitled to conduct checkpoints under the federal Constitution.
Turning into a parking lot to avoid passing through a checkpoint creates probable cause to justify an investigatory stop, but avoiding a checkpoint by turning onto another highway does not create probable cause to justify an investigatory stop. People v. Chaffee, 590 N.Y.S.2d 625 (1992); People v. Rocket, 594 N.Y.S.2d 568 (1992).
People v. Kahn, 610 N.Y.S.2d 701 (1994) — The elements of proof are: (1) the defendant ingested a drug; (2) the drug ingested by the defendant is one proscribed New York’s Public Health Code; (3) after ingesting the drug, the defendant operated a motor vehicle; and (4) while operating, defendant’s ability to operate the motor vehicle was impaired by the ingestion of the drug.
People v. Kaminski, 573 N.Y.S.2d 394 (1991) — Operator was pulled over for out-of-date plates when officers smelled odor of marijuana in car. Defendant failed field tests and displayed several traditional signs of impairment, thus giving the officer probable cause to arrest for DUI.