Is New York State like Ford said, "Everybody thinks differently, they just don't know what the the hell the rest of the United States is." I believe to fully understand New York state's DWI rules, laws, and regulations you must contrast them to other state's DUI rules, laws, and regulations?
I am an appreciator of a great many things. Now being an appreciator doesn't mean that I'm an expert at food, art, music, or any of the hundreds of things I truly enjoy and relish. What appreciation means to me is that I can respect what's behind or beneath the surface. What went into this? What inspired this? Where did this come from?
Language is More than Words, Even When it Comes to DWI Law
For many years I have studied other languages. I'm fascinated by the latin roots of Spanish and French. In my two careers (chiropractic and legal) I have been privileged to learn the meaning of many latin terms, I love knowing why the profunda femoris, a deep artery in the leg that I dissected in first year anatomy gives us a word like profound as that artery runs deep. Every word has a richer meaning and purpose. My memory and love for languages comes out of that comparison. My love for the law comes from that same inquisitiveness and curiosity. Comparative law brings a richness and texture to our deeper understanding of the law and how it's applied.
What Makes New York DWI Law so Different from Many Other States?
1. New York has the court act as an administrative arm of the Department of Motor Vehicles when it comes to driver's license suspensions and revocations. At roadside DUI arrests in states like Florida, Troopers regularly physically take away driver's licenses, and are allowed to issue temporary paper licenses.
If a New York State law enforcement officer physically takes away your license all it means is that they are holding your property hostage. It doesn't mean you are suspended or revoked, that happens via a judge. You must have at a minimum Due Process in New York before losing your property (yes, a license is property right). This means Notice and a Hearing. You must sign a paper stating that your privilege has been suspended and you have a right to be heard on why?
2. New York DWI refusals mean it is likely you will lose your driving privileges until your criminal case is resolved. In many states you can get a temporary work license regardless of you DWI not so in New York state. New York DMV regulations state that until you have a plea and sentence to one of the VTL section 1192 (DWI, DWAI, Aggravated DWI, DWAI drugs) offenses you may not get a conditional or a restricted driver's license. The most progressive states like Florida now allow for immediate driving privileges regardless of DUI refusal or test.
3. New York allows Judges to comment on DWI refusal evidence. In many states judges can not (must not) comment upon the strengths or weaknesses of the government's evidence. In New York State judges can give a jury instruction which states that the jury can infer (reason) that your refusal was based upon your Consciousness of DWI Guilt.
4. New York has a Three Level Tier of DWI drunk and drug driving offenses. New York has a violation level DWAI (driving while ability impaired), a misdemeanor level DWI (driving while intoxicated), and a felony level DWI. Many states have a two tier system of misdemeanor and felony drunk or drug driving offenses.
5. New York has NO expungement statute for DWI or DWAI offenses. Any DW in New York state is a permanent record. Neighboring states like PA have a full expungement of DUI offenses not so in New York state.
6. New York allows law enforcement to use circumstantial evidence to charge misdemeanor and even felony level offenses. In many states police must observe a DUI before charging a crime. In New York, a neighbor or concerned citizen can phone the police and report bad driving. The police can then come to your house, your job, or your location without witnessing any of your driving behavior, and then request that you do field sobriety tests, or request blood or breath to make an arrest for DWI.
7. New York misdemeanor level DWI to a highest criminal felony level DWI happens fast. There is little to no build up to move from a lower level misdemeanor to high level felony DWI crime in New York. Two DWI or DUI or OUI within ten years is all it takes to enhance a DWI to the felony level. In some states like New Jersey, the first two DUI are not even crimes. It's not till a third DUI in New Jersey that you get a jury trial and are charged at the higher level. In states like Florida it's not till the third DUI strike that you reach felony level territory.
So there you have seven of the top reasons why a New York State DWI offense can be unique and most of all dangerous. There are others but these are the ones that come to my mind first and foremost as a I ponder and contrast nationwide DUI/DWI laws.