The Four Elements of a DWI Arrest
In New York State the prosecution must prove four elements to convict the Accused of a DWI (Driving While Intoxicated) Misdemeanor. The burden of proof lies completely on Prosecutor and because a DWI arrest is a criminal prosecution, the standard of proof is beyond a reasonable doubt. That is, that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty.
In order, the elements of a DWI Arrest are:
(1) Driving / Operation;
(2) Of a Motor Vehicle;
(3) On a Public Highway;
(4) While Intoxicated or Impaired, proven by either by Per Se Intoxication or Totality of the Circumstances;
The fourth element is often the most important in a DWI trial. As a person’s intoxication or impairment may be shown in one of two ways, either by showing Per Se Intoxication or by a “Totality of the Circumstances.”
Per Se Intoxication is submitted to the Court as evidence derived from chemical tests, i.e., blood, breath, urine or saliva that measures the percentage of the blood alcohol content (BAC) of the accused. In New York State these tests must show the defendant had a BAC of .08 or higher at the time of operating a motor vehicle. Under New York State’s “Implied Consent Law” all drivers are considered to have already given consent to take this type of test. Meaning, a Test Refusal at the time of arrest will result an additional administrative charge brought in the DMV Court.
Totality of the Circumstances Intoxication. If a defendant refuses testing, the Prosecution will attempt to prove the elements of DWI by the evidence gathered at the time of the arrest. i.e., the Police Officer’s observations, including his training, experience, and knowledge. The evidence can include: statements made by the defendant; the defendant’s behavior; slurred speech; bloodshot eyes; impaired coordination; lethargic movements and; the odor or presence of alcohol on the defendant or in the vehicle. All of the Police Officer’s observations and any field test evidence make up the “totality of the circumstances.”
If you are arrested and charged with DWI in New York State you need good legal representation to protect your rights and explore your options. Call my office for a free confidential no obligation consultation.