Home > Case Studies > DWI > 5 Common Myths and Misconceptions About New York DWIs

5 Common Myths and Misconceptions About New York DWIs

by | Dec 22, 2022

Being arrested for a DWI can be a stressful, scary, and overwhelming experience. Your liberty, reputation in the community, and professional standing are all on the line when you are facing drinking and driving charges. However, many people have various misconceptions about DWIs. It’s important to be aware of these myths to avoid making costly mistakes in your case.                           

Here are five common misconceptions about DWIs in New York:

Misconception #1: Refusing a breathalyzer means there will be no evidence to use against me

Although this misconception is partly true, a police officer’s testimony and observations are deemed sufficient evidence in court. In addition, refusing to take the breathalyzer or a chemical test comes with an automatic one-year license suspension. If you do take the breathalyzer test, it’s essential to understand that a good criminal defense attorney will know how to challenge the results. 

Misconception #2: I can get my DWI expunged from my record

New York State does not offer an expungement option if you are convicted of a DWI or another crime. There is no way a DWI can be removed from your record, unless you were acquitted or the case was dismissed. Upon conviction, a DWI will remain on your record for 15 years. However, there is a sealing statute in New York that allows an individual to petition to have their record sealed after ten years in certain circumstances. 

Misconception #3: You don’t have to worry about a DWI if your BAC is less than .08%

A BAC of less than .08% can result in a conviction. Specifically, while a BAC of .08% establishes evidence of intoxication, a BAC of .05% is evidence of impairment and can lead to a charge of Driving While Ability Impaired. The legal BAC limit for commercial drivers is even lower, at .04%. In addition, it is illegal for drivers under the age of 21 to operate a motor vehicle with a BAC of as little as .02%.

Misconception #4: The breathalyzer results can’t be challenged

Breathalyzers aren’t always accurate — even a small defect can impact the results. There are a number of ways an experienced criminal defense attorney can challenge a breathalyzer test. For instance, the breathalyzer results may not be reliable if the device was not properly calibrated, the officer lacked breathalyzer test training, or the breathalyzer test was obtained through an illegal search. 

Misconception #5: You don’t need legal counsel for your first DWI

Even if it’s your first DWI, having an experienced attorney is vital. It can also make all the difference to the outcome of your case. A first-time DWI can come with serious consequences, including jail time, fines, probation, loss of your license, and other penalties. A skillful criminal defense attorney will know how to challenge the evidence against you, mount a solid defense strategy, and work diligently to obtain a dismissal by finding any flaws in the prosecution’s case. They will also know what the best course of action to take in your case is, and how to effectively negotiate a plea bargain with the prosecution.

Contact an Experienced New York Criminal Defense Attorney

If you’re facing DWI charges, it’s critical to have a DWI defense attorney on your side to safeguard your rights. The criminal defense attorneys at D’Emilia Law are committed to providing knowledgeable representation and adept advocacy to those who have been arrested for DWIs and other alcohol-related offenses. To schedule a consultation, contact us at 1-888-DEMILIA.


Types of DWI Offenses in New York State 

Being charged with the offense of driving while intoxicated can be stressful and overwhelming. However, it’s important to understand that the consequences you may face can depend upon the facts and circumstances surrounding the DWI — and the specific offense with...
Ghost Gun

Understanding New York’s Ghost Gun Laws

New York has some of the toughest firearms laws in the nation. While strict penalties are imposed for possessing an unregistered firearm, legislation was enacted in 2022 that strengthened the state’s laws regarding ghost guns. These types of guns are those that do not...
Search Warrant

What is a Search Warrant? 

Most people are aware that the police are usually prohibited from searching a premises or person without a warrant under the Fourth Amendment of the U.S. Constitution. A search warrant is a court order issued for the purpose of authorizing law enforcement to conduct a...

Is a Warrantless Search Ever Permissible?

The Fourth Amendment to the U.S. Constitution protects individuals from unlawful searches and seizures by law enforcement. As a general rule, before police can search your person, home, or vehicle, they must have probable cause for the search — and obtain a valid...
New York DWI Cases

Can the Necessity Defense Be Used in DWI Cases in New York?

Driving under the influence is a very serious offense in New York that requires a skillful and strategic defense. Critically, one of the defenses that may be available to those who have been charged with the offense of driving under the influence is the “necessity...
Subway Self-Defense

NYC Subway Incident Raises Complex Legal Questions Regarding Self-Defense

The recent New York City subway incident that resulted in the death of Jordan Neely made headlines throughout the nation. While there are still many facts that are not yet known, and various issues that will need to be determined at trial, the case raises many...

What is Possession of a Controlled Substance?

Possession of a controlled substance is a serious crime in New York that can come with severe consequences. Many of these offenses are charged as felonies and can come with a lengthy prison term, steep fines, and long-term ramifications. Not only can a conviction...
Drug Possession

What Defenses Can Be Used in a Drug Possession Case?

If you face charges for possession of a controlled substance, it’s crucial to understand that an arrest does not mean a conviction. While this offense is taken very seriously in New York, there are several defense strategies that can be used to fight the charges...
Marijuana DWAI

3 Important Things to Know About Marijuana DWAIs in New York

Many people are familiar with New York’s strict laws regarding driving under the influence of alcohol. However, it’s critical to be aware that the state also imposes harsh penalties on those who have been found guilty of driving under the influence of marijuana —...
DWI Mistakes

Common Mistakes to Avoid Making in Your DWI Case

A DWI is a serious matter in New York. While these situations can be stressful and overwhelming, many people are not sure what they should do or how they should proceed. Critically, there are certain mistakes that are commonly made which could impact your case and...