DWI LAWYER

Stephen K. Underwood

Attorney at Law

716-656-7676

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DWI Lawyer Serving The WNY Area

If you have been arrested for DWI I can help you.

What should you consider when choosing DWI Lawyer?

Regardless of whether your arrest for DWI involved a traffic accident, you should always choose a lawyer that has Criminal Law experience.

Choosing a lawyer with Criminal Law experience is important for the following reasons:

a) The STOP by the police may have violated your Constitutional rights.

b) Statements you made to the police may not be admissible in Court for Constitutional reasons.

c) The police may have entered your home to make an arrest violating your Constitutional rights.

d) The DWI defense requires knowledge of the rules of evidence regarding admissibility of technical and scientific evidence.

e) A conviction for DWI may cause you to be sentenced to jail or imprisionment.

f) A conviction for DWI will cause your Drivers License to be suspended or revoked.

g) A conviction for DWI may seriously impact your Commercial Drivers License (CDL).

h) A conviction for DWI may result in huge fines and fees.

i) An arrest or conviction for DWI may harm your reputation and your ability to keep your job.

j) A conviction for DWI may impact your voting rights or the right to own a firearm.

k) A conviction for DWI may cause your insurance rates to increase.

If you have been arrested for drunk driving and are searching for an experienced DWI Attorney, look no further and contact me above by getting your FREE phone or email consultation.



1395 Union Road West Seneca, NY 14224

DWI Field Tests

Stephen K. Underwood

Attorney at Law

716-656-7676

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DWI Field Sobriety Tests

When a driver is stopped by the police, and the officer suspects that the driver has been operating the vehicle in an intoxicated state, the officer may request that the driver take Field Sobriety Tests and/or a Preliminary Breath Test.

The Field Sobriety Tests can include the One Leg Stand Test, the Finger to Nose Test, the Walk and Turn Test, the Gaze Nystagmus Test, the Alphabet Test, the Rhomberg Test, and/or the Finger Count Test.

The Preliminary Breath Test is typically performed by the driver blowing into a device called the Alco-Sensor.

The Alco-Sensor is a handheld infrared breath testing machine that is used as a screening device to determine whether a driver is intoxicated.

The New York State Police, and most other police agencies in the State of New York, use the Alco-Sensor as an alcohol screening device.

If the driver fails some of the Field Sobriety Tests and/or registers a high enough reading on the Alco-Sensor, the driver may be arrested for driving while intoxicated (DWI).

The driver will then be taken down to the station and within two hours will be asked to take a chemical test called the breathalyser, or more likely, some sort of advanced infrared breath testing devise. If the driver is unwilling to take the test at the station, he will be deemed to have "refused" the test.

If you have been arrested for drunk driving and are searching for an experienced DWI Attorney, look no further and contact me above by getting your FREE phone or email consultation.

1395 Union Road West Seneca, NY 14224

Breathalyzer Test

Stephen K. Underwood

Attorney at Law

716-656-7676

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Breath Test

If a driver has been arrested for driving while intoxicated (DWI) and taken to the police station for booking, the driver will be asked to submit to a breath test by blowing into a device commonly known as the breathalyzer.

If the driver is unwilling to take the breathalyzer, the driver will be deemed to have "refused" the test.

If there is a refusal, the driver will be noticed by the Department of Motor Vehicles (DMV) to appear for a Refusal Hearing before an Administrative Law Judge (ALJ).

If the ALJ finds that the driver refused to take the breathalyzer, the driver will encounter additional penalties from the DMV other than the potential penalties stemming from the arrest. DMV penalties include revocation of the driver's license, civil penalties, and other administrative fees.

Although, the term breathalyzer is commonly used to describe all breath testing machines, today, police agencies generally no longer use the the actual chemical testing device called the Breathalyzer, they use devices that employ infrared spectrometry such as the Alcotest 7100 MKIII or the BAC DataMaster.

If you have been arrested for drunk driving and are searching for an experienced DWI Attorney, look no further and contact me above by getting your FREE phone or email consultation.

1395 Union Road West Seneca, NY 14224

Refusal

Stephen K. Underwood

Attorney at Law

716-656-7676

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Refusal of Chemical Test

Drivers in New York State are subject to the State's implied consent laws regarding Chemical Tests. Drivers are therefore legally required to submit to a Chemical Test if asked to do so by a Police Officer. The most common test administered is a breath test, however, sometimes a blood test is given. If you refuse to take a Chemical Test you may receive an Administrative Punishment from the DMV after a hearing. The punishment is separate from any DWI charges that may be brought against you in Court.

What is the DMV Punishment

First time refusal:

Your driver's license will revoked for one year (18 months on CDL) + $500 civil penalty ($550 CDL) + $250 driver responsibility assessment for three years.

Second time refusal:

Second refusal within 5 years (or DWI/DWAI conviction within 5 years) of First Refusal:

Your driver's license will revoked for 18 months (permanent CDL Revocation) + $750 civil penalty + $250 driver responsibility assessment for three years.

Should I Take The Chemical Test

To Blow or Not To Blow That is the Question.

The answer to this question depends on the circumstances and opinions vary among lawyers.

I think you should ONLY BLOW if it is your first offense, and you have not been drinking alot, and there has not been any kind of accident. You may be better off taking the test in this situation because you may have the ability to plead to a DWAI and you won't suffer the refusal penalty.

If you have been arrested for drunk driving and are searching for an experienced DWI Attorney, look no further and contact me above by getting your FREE phone or email consultation.

1395 Union Road West Seneca, NY 14224

Intoxication

Stephen K. Underwood

Attorney at Law

716-656-7676

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Intoxication - Blood Alcohol Content (BAC)

The legal definition of "intoxication" in the State of New York is that the driver "voluntary consumed alcohol to the extent that he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver" (People v. Cruz, 48 N.Y.2d. 419 (1979).

The legal definition of "impairment" in the State of New York is that a driver is deemed impaired when the voluntary consumption of alcohol has "actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver" (People v. Cruz, 48 N.Y.2d. 419 (1979).

Keep in mind that the above definitions apply to what is called the "common law" definitions of DWI (Driving While Intoxicated) and DWAI (Driving While Ability Impaired).

When a driver is arrested for DWI and takes the breathalyzer, he is generally prosecuted on two separate theories. The first being the common law, and the second being DWI per se, that is, driving with a Blood Alcohol Content (BAC) of .08 or more. If a driver has a BAC of .18 or more, the driver may be charged with "Aggravated DWI"

How do you know your Blood Alcohol Content?

BAC Calculator

If you have been arrested for drunk driving and are searching for an experienced DWI Attorney, look no further and contact me above by getting your FREE phone or email consultation.

1395 Union Road West Seneca, NY 14224

Operation

Stephen K. Underwood

Attorney at Law

716-656-7676

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What constitutes Operation of Motor Vehicle?

The Court will consider the following factors in deciding whether a person was "operating the motor vehicle"

i)  Whether the person in the vehicle was awake.
ii) Whether the motor was running.
iii) Whether the keys were in the ignition.
iv) The location of the vehicle and how it got there.
v) Whether the person intended to move the vehicle.

What constitutes a Motor Vehicle?

The statutory definition of a motor vehicle is as follows:

VTL §125: Motor Vehicle: Every vehicle operated or driven upon a public highway which is propelled by any power other than muscular power, except...

VTL §159: Vehicle. Every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human power or used exclusively upon stationary rails or tracks.

If you have been arrested for drunk driving and are searching for an experienced DWI Attorney, look no further and contact me above by getting your FREE phone or email consultation.

1395 Union Road West Seneca, NY 14224r

Hardship License

Stephen K. Underwood

Attorney at Law

716-656-7676

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Hardship License

If you are arrested for DWI for having a BAC of .08 or more your drivers license will be suspended pending prosecution.

If the driver can prove to the Court that the suspension will cause an "extreme hardship", the Court will issue a Hardship Priviledge to the driver.

The definition of "extreme hardship" means the inability to obtain alternative means of travel to or from the licensee's employment, or to or from necessary medical treatment for the licensee or a member of the licensee's household, or if the licensee is a matriculating student enrolled in an accredited school, college or university travel to or from such licensee's school, college or university if such travel is necessary for the completion of the educational degree or certificate.

A finding of extreme hardship may not be based solely upon the testimony of the licensee.

If granted, the hardship priviledge will permit the operation of a vehicle only for travel to or from the licensee's employment, or to or from necessary medical treatment for the licensee or a member of the licensee's household, or if the licensee is a matriculating student enrolled in an accredited school, college or university travel to or from such licensee's school, college or university if such travel is necessary for the completion of the educational degree or certificate.

If the Court finds against the driver, the driver may receive a Conditional License pending prosecution after 30 days, if eligible.

If you have been arrested for drunk driving and are searching for an experienced DWI Attorney, look no further and contact me above by getting your FREE phone or email consultation.

1395 Union Road West Seneca, NY 14224

20 Day Order

Stephen K. Underwood

Attorney at Law

716-656-7676

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20 Day Order

If a driver submits to the breath test when arrested, and is convicted of Driving While Intoxiated (DWI) or Driving While Ability Impaired (DWAI), the driver is eligible for a 20 day Order.

The Twenty (20) Day Order authorizes twenty days of full driving privileges following a conviction for DWI or DWAI to determine whether a driver is eligibile for enrollment in the Drinker Driver Program (DDP). Enrollment in the DDP will enable the driver to obtain a Conditional License during the period of revocation or suspension that stems from the conviction.

If you have been arrested for drunk driving and are searching for an experienced DWI Attorney, look no further and contact me above by getting your FREE phone or email consultation.

1395 Union Road West Seneca, NY 14224

Charlotte"s Law

Stephen K. Underwood

Attorney at Law

716-656-7676

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Charlotte's Law - Repeat DWI Offenders

15 NY-CRR I J §132

PART 132. DANGEROUS REPEAT ALCOHOL OR DRUG OFFENDERS

Charlotte's Law (a bill that did not pass), provoked amendments to the NY State DMV Regulations adding new rules designed to impact DWI repeat offenders that for some will require legal analysis or intervention to get driving privileges restored. Yet for others there may not be a remedy. The rules effect anyone that has had an alcohol or drug related driving conviction or incident on their driving record, and are applying to the DMV to restore their license after a revocation (even if your license is not currently Revoked as a result of a DWI Conviction or Refusal).

The new rules could cause some drivers to suffer an additional 2 year, 5 year, or in some cases a Lifetime Revocation at the time they apply to have their Licenses Reinstated.

Some repeat DWI offenders may have their licenses revoked if they get flagged for a "lifetime record review" after being convicted of a traffic offense worth five or more points, such as passing a stopped school bus, reckless driving, or speeding more than 20 mph over the limit. When these Drivers apply to restore their licenses after the revocation period has ended they may also suffer an additional 2 year, 5 year, or Lifetime Revocation.

Some DWI and DWAI offenders will also find that even if they qualify and complete the Drinker Driver Program they will not be able to have their licenses fully restored after completing the program because they have two or more alcohol or drug-related driving convictions or incidents within 25 years from the date of enrollment in the program. These offenders will have to continue on with their conditional license until the suspension or revocation period expires.

Revocation Triggers a Lifetime Review Upon Application to Restore License

Whenever a driver applies to have a license restored after serving a Revocation the Commissioner will conduct a lifetime review of such person's driving record to see whether the driver has a history of alcohol or drug related driving convictions or incidents and/or Serious Driving Offenses.

An alcohol or drug related driving conviction or incident means a conviction of a violation of section 1192 of the Vehicle and Traffic Law(DWI, DWAI), a finding of a violation of section 1192-a (Zero Tolerance) of the Vehicle and Traffic Law, a conviction of an offense under the Penal Law for which a violation of section 1192 of the Vehicle and Traffic Law is an essential element, or a finding of refusal to submit to a chemical test under section 1194 of the Vehicle and Traffic Law, not arising out of the same incident.

Serious driving offense means, a fatal accident, a driving-related Penal Law conviction, conviction of two or more violations for which five or more points are assessed on a violator's driving record, or 20 or more points from any violations.

Discretionary Approval of Application to Restore License

If the driver has two alcohol- or drug-related driving convictions or incidents in any combination within the 25 year look back period, then the commissioner may in his or her discretion approve the application after the minimum statutory revocation period is served.

Two(2) Year Additional Revocation Upon Application to Restore License

If the driver has three or four alcohol- or drug-related driving convictions or incidents in any combination within the 25 year look back period but no serious driving offenses within the 25 year look back period; and the person is not currently revoked as the result of an alcohol- or drug-related driving conviction or incident, then the commissioner shall deny the application for at least two years, after which time the person may submit an application for relicensing. Such waiting period shall be in addition to the revocation period imposed pursuant to the Vehicle and Traffic Law. After such waiting period, the commissioner may in his or her discretion approve the application, provided that upon such approval, the commissioner shall impose an A2 restriction, with no ignition interlock requirement, for a period of two years. If such license with an A2 restriction is later revoked for a subsequent alcohol- or drug-related driving conviction or incident, such person shall thereafter be ineligible for any kind of license to operate a motor vehicle

Five (5) Year Additional Revocation Upon Application to Restore License

If the driver has three or four alcohol- or drug-related driving convictions or incidents in any combination within the 25 year look back period but no serious driving offenses within the 25 year look back period; and the person is currently revoked for an alcohol- or drug-related driving conviction or incident, then the commissioner shall deny the application for at least five years, after which time the person may submit an application for relicensing. Such waiting period shall be in addition to the revocation period imposed pursuant to the Vehicle and Traffic Law. After such waiting period, the commissioner may in his or her discretion approve the application, provided that upon such approval, the commissioner shall impose the A2 restriction on such person's license for a period of five years and shall require the installation of an ignition interlock device in any motor vehicle owned or operated by such person for such five-year period. If such license with an A2 restriction is later revoked for a subsequent alcohol- or drug-related driving conviction or incident, such person shall thereafter be ineligible for any kind of license to operate a motor vehicle.

Lifetime Revocation Upon Application to Restore License

If the driver has five or more alcohol- or drug-related driving convictions or incidents in any combination within his or her lifetime, then the commissioner shall deny the application to restore the license.

If the driver has three or four alcohol- or drug-related driving convictions or incidents in any combination within the 25 year look back period and, in addition, has one or more serious driving offenses within the 25 year look back period, then the commissioner shall deny the application to restore the license.

If the driver has been twice convicted of a violation of subdivision three, four or four-a of section 1192 of the Vehicle and Traffic Law or of driving while intoxicated or of driving while ability is impaired by the use of a drug or of driving while ability is impaired by the combined influence of drugs or of alcohol and any drug or drugs where physical injury, as defined in section 10.00 of the Penal Law, has resulted from such offense in each instance, then the commissioner shall deny the application to restore the license.

How To Get Your License Restored After Multiple DWI's in New York

Currently there has been little progress in overturning the new DMV Regulations. I believe they will withstand the challenges. Nonetheless, there are a couple of ways that a person could get their license restored. It is best to take action before applying for the restoration of your license.

The first is the filing of a petition for a writ of coram nobis. In Lyons v. Goldstein, the Court of Appeals held that a court has the power to investigate its own judgment of conviction and if necessary, set it aside (290 N.Y. 19 (N.Y. 1943). Coram nobis is available when a defendant has been denied constitutional rights (among other things). This may work to reopen a prior case where a conviction for DWI occurred based on a plea bargain. The constitutional violation, as the argument goes, was when the defendant waived his right to trial without having the benefit of knowing the gravity of his plea. In other words, he would have chosen to go to trial had he known about the current changes to the DMV regulations. This will do you no good in a case were you refused the chemical test, as that counts as an alcohol incident even if the DWI conviction is removed from your record. The planets will have to be aligned for this to work. The judge will have to rule in your favor, the ADA will have to offer you a plea to a non-dwi offense or fail to prevail at trial, and it has to be beneficial to your DWI count.

The second is to file an Article 78 Petition to remove a prior finding that you refused a chemical test. This will work to reduce your DWI count on a case where the DWI charges were dismissed in the court case because of a constitutional violation (bad stop, payton violation ect.). Of Course the DMV will argue that you failed to appeal the finding so an Article 78 can't be filed, but I think the DMV will be unable to prove that they gave proper notice of your right to appeal, so the argument goes. Again, this may only help you if you had hired a lawyer that exercises proper motion practice, and you benefit from one less alcohol incident on your record.

If you have been arrested for drunk driving and are searching for an experienced DWI Attorney, look no further and contact me above by getting your FREE phone or email consultation.

1395 Union Road West Seneca, NY 14224

Leandra's law

Stephen K. Underwood

Attorney at Law

716-656-7676

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Leandra's Law

Leandra's law was initialy passed in 2009 (recently amended in 2013) after Leandra Rosado, an 11 year old girl, was killed (and six other children were injured) when her friend's mother crashed the car they were riding in while under the influence of alcohol.

Leandra's Law also known as the Child Passenger Protection Act makes it an automatic Class E felony punishable by up to four years in state prison on the first offense for driving drunk with a person age 15 or younger inside the vehicle.

Leandra's Law also included the following:

Requires the installation of an ignition interlock device for a DWI conviction for a period of one (1) year even if it is your first offense and there is no child in the car;

Driving a vehicle without an ignition interlock device after you have been ordered to install one is a Class A misdemeanor, punishable by up to one year in jail;

Assisting someone in circumventing an interlock device allowing an intoxicated person to drive is a Class A misdemeanor, punishable by up to one year in jail;

Drivers who drive while intoxicated or impaired by drugs and cause the death of a child 15 years old or younger riding in their car may be charged with a Class B felony, punishable by up to 25 years in state prison;

Drivers who drive while intoxicated or impaired by drugs and cause serious physical injury to a child 15 years old or younger riding in their car may be charged with a Class C felony, punishable by up to 15 years in state prison;

Violators of Leandras Law involving children are reported to the Statewide Central Register of Child Abuse and Maltreatment.

If you have been arrested for drunk driving and are searching for an experienced DWI Attorney, look no further and contact me above by getting your FREE phone or email consultation.

1395 Union Road West Seneca, NY 14224

Client's Rights

Stephen K. Underwood

Attorney at Law

716-656-7676

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Statement of Client's Rights

1. You are entitled to be treated with courtesy and consideration at all times by your lawyer and the other lawyers and personnel in your lawyers office.

2. You are entitled to an attorney capable of handling your legal matter competently and diligently, in accordance with the highest standards of the profession. If you are not satisfied with how your matter is being handled, you have the right to withdraw from the attorney-client relationship at any time (court approval may be required in some matters and your attorney may have a claim against you for the value of services rendered to you up to the point of discharge).

3. You are entitled to your lawyer’s independent professional judgment and undivided loyalty un-compromised by conflicts of interest.

4. You are entitled to be charged a reasonable fee and to have your lawyer explain at the outset how the fee will be computed and the manner and frequency of billing. You are entitled to request and receive a written itemized bill from your attorney at reasonable intervals. You may refuse to enter into any fee arrangement that you find unsatisfactory.

5. You are entitled to have your questions or concerns addressed in a prompt manner and to have your telephone calls returned promptly.

6. You are entitled to be kept informed as to the status of your matter and to request and receive copies of papers. You are entitled to sufficient information to allow you to participate meaning fully in the development of your matter.

7. You are entitled to have your legitimate objectives respected by your attorney, including whether or not to settle your matter (court approval of a settlement is required in some matters).

8. You have the right to privacy in your dealings with your lawyer and to have your secrets and confidences preserved to the extent permitted by law.

9. You are entitled to have your attorney conduct himself or herself ethically in accordance with the Code of Professional Responsibility.

10. You may not be refused representation on the basis of race, creed, color, religion, sex, sexual orientation, age, national origin or disability.

If you have been arrested for drunk driving and are searching for an experienced DWI Attorney, look no further and contact me above by getting your FREE phone or email consultation.

1395 Union Road West Seneca, NY 14224

BAC Calculator

Stephen K. Underwood

Attorney at Law

716-656-7676

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NY BAC Calculator

Blood Alcohol Content Calculator

Read Below*** Before Using

Total Consumed:
12 oz. Beers +
5oz. Glasses of Wine +
1.5 oz. Shots of 80 proof Liquor
Your Weight in Pounds (lb)
Your Sex
How Long Drinking - Hours
How Long Drinking - Minutes
 

*** This calculator is for informational purposes only, and is NOT LEGAL ADVICE. Your actual blood alcohol content is a function of many factors, some of which are not included in this calculator.

***The result is a rough estimate of BAC based on the blood alcohol level charts provided by Virginia Tech that was found on wikipedia.org.

*** DO NOT rely on these results for any purpose other than fun, and NEVER operate a motor vehicle or other machinery if you have consumed any amount of alcohol.

If you have been arrested for drunk driving and are searching for an experienced DWI Attorney, look no further and contact me above by getting your FREE phone or email consultation.

1395 Union Road West Seneca, NY 14224