For anyone that has been arrested for or charged with a drunk driving offense in New York, there can be lots of questions regarding their rights, defense options, and how to proceed.

We address many of these questions and concerns in the following FAQ. For more information and answers related to a specific DWAI or DWI case we advise you to contact the Law Office of Lisa Pelosi.

If a police officer has reasonable suspicion that you are driving drunk or under the influence, they will pull you over. Failure to pass the breath-alcohol test that checks your blood alcohol content or BAC or refusing to take the test will result in an arrest and you will be brought to the police station where you may have to undergo a chemical screening test such as a breathalyzer, blood test or urine test at the precinct. Regarding taking a field sobriety test (coordination test) when stopped, you can refuse, but it’s important to understand the implications associated with this decision. DWI and DUI New York law is complicated, and the facts of each case are different. If you are arrested, ask to speak to your criminal defense attorney immediately

If you are stopped by the police, you have the right to remain silent or ask for your lawyer. Keep in mind a refusal to take the breathalyzer is a crime in New York State. If you are arrested for DWI, DUI or DWAI, it is important to have an attorney who can help defend your rights.

Under New York State law, you voluntarily consent to take chemical tests by virtue of the assurance of your operator’s license, thus, a failure to take the chemical test can be found to be “refusal” at a separate proceeding at the Department of Motor Vehicles. If you are found to have refused a chemical test by the DMV administrative judge at the hearing, your operator’s license or privilege (for out of state drivers) will be revoked for one year, regardless of the outcome of the criminal case, and fines will be assessed.

Your DWI criminal attorney will challenge the veracity of the breathalyzer. Observations of the police or witnesses along with the breathalyzer are used by the government to try to convict someone charged with DWI or DUI. It is important to show the tests were not properly conducted.

If in the past 10 years you have been convicted of a DWI, DUI, or vehicular manslaughter, vehicular assault in the 1st or 2nd degree, you can be charged with a DWI felony. Also, Leandra’s Law (Child Passenger Protection Act), which came effective in 2009 in New York, sets some of the toughest DWI provisions in the country. Your New York DWI criminal attorney will work with you to understand the laws and will help you be evaluated by an OASAS provider so your case can be resolved.  

In addition to the possibility of jailtime, your license will be suspended for at least six months, though you may be eligible for a conditional or hardship license. If you have any questions about whether continuing to drive is safe or legal, contact an attorney.

You can still get insurance if you’ve been convicted of drunk driving. It’s just a bit harder to get covered. Many insurers will cover you if you have only a single DUI on your record.  Contact an attorney if you have any questions or concerns about your situation.

Marijuana stays in an individual’s system for approximately 28 days. The key to defending against marijuana-related charges would be to suggest that the officer cannot prove that you were under the influence of marijuana while driving. A urine sample can be given at the police precinct.

If you refuse a urine test or another chemical test, there will be a refusal hearing, and a judge may recommend a driver’s license suspension of at least one year. While it is legal in New York to use marijuana for medicinal purposes, if a person using marijuana for medical purposes is pulled over for driving erratically and either tests positive for THC or fails a field sobriety test, they can be charged with a DWAI, DWI charge. Work with your criminal defense lawyer to address any Marijuana DWI and DUI charges and to seek a dismissal or plea bargain.

The first step in your defense for a DWI is to identify the possible defense options available to you. One defense is to prove that you were not under the influence of alcohol while in the vehicle. To prove this defense, you will need to provide evidence of how much alcohol was in your system at the time of your arrest. Another possible defense is impaired driving caused by a medical condition.

To successfully argue this defense, you will need to provide documentation from your doctor stating that you have a medical condition. A DWI charge can also be dismissed if it is determined the officer did not have a reasonable suspicion to pull the vehicle over or if legal technicalities are found causing the case to need to be dismissed. In many cases, DWI plea bargaining is an important part of defending a charge.


You’ll receive a free, no-risk evaluation of your charges, typical sentences, the evidence against you, and other important aspects of your case.


State and federal cases accepted. Lisa gets to know you and listens to your side of the story without judgment.


Lisa is a seasoned trial and appellate attorney with more than 30 years of criminal law experience, including experience as a prosecutor.


Lisa Pelosi serves New York City and all of the Hudson Valley. 

About The Law Firm of Lisa Pelosi


Lisa Pelosi is an experienced DWI criminal attorney. Call her at 845-999-9394 to discuss your situation and determine how to best proceed. Lisa has been practicing criminal law for over thirty years in the NYC and Hudson Valley. Having been a Prosecutor, she is very familiar with all aspects of Criminal Law.

Lisa is available 24/7 and offers free consultations and, in many cases, will go to your neighborhood to meet with you.

Lisa and her team will explain each aspect of the criminal justice system to you and work with you to resolve your case.

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