A NYS DWI arrest affects a number of things in your life. One of the things many of us take for granted is our ability to drive. People don't consider that driving is not a RIGHT but a PRIVILEGE.
DWI cases are where the world of criminal law (RIGHTS) often intersects and integrates with the civil world of PRIVILEGES. Privileges are things like licenses. A license in it's simplest terms is merely a permission. It is an allowance. You are allowed to do something. There are licenses to practice professions, and there are licenses to go on a person's land, and there are licenses to drive certain types of vehicles.
TAKEAWAY: The key thing to remember about all licenses is that they are more easily lost (ie. taken away) and suspended than a right.
LICENSES are held to an administrative standard or burden of proof. It is a little higher than the preponderance of evidence standard of "more likely than not." Some call it "substantial" evidence. This is NOT the criminal burden (standard) of PROOF beyond a reasonable doubt.
THESE ARE YOUR PRIMARY DWI RIGHTS
The three pivotal rights in DWI cases are set in the 4th, 5th, and 6th amendments (The Bill of RIGHTS).
- 4th: Right to be free from "unreasonable" search and seizure.
TAKEAWAY: In DWI cases, you need Probable Cause for a stop, PC for an arrest.
- 5th: Right to remain silent. In DWI cases you can't be forced to testify.
- 6th: Right to trial.
In DWI cases, you are to have a
A RIGHT TO a speedy, public trial, with an impartial jury,
A RIGHT TO confront witnesses (the police officers, troopers, deputies), and
A RIGHT TO present evidence (toxicologists, doctors, breath test experts, eye witnesses).
Understand the crucial differences between your rights and your privileges. Awareness of your protections and safeguards (under the Constitution), and what you may be "entitled" to with the DMV helps you to prepare.
Administrative license hearings may allow many of these things, like confrontation and presenting evidence, but IMO they are diluted and of course held to a different (lower) standard. Administrative (license) hearings allow Hearsay, allow the admission of reports (against you) without the ability to confront witnesses, and almost force you to testify to defend the case against you. You can not sit idle in these types of situations.
Larry Newman, Ithaca Lawyer, 607-229-5184