DWI arrests in New York surge during the holidays – yes, it’s that time again – because more DWI checkpoints are conducted by police agencies throughout the state.

If you drive in New York, keep reading. You’re about to find out how DWI checkpoints are conducted and what your rights are at a checkpoint and how a DWI attorney in NY can help.

At New York’s DWI checkpoints, drivers may be briefly detained by the police, questioned, and sometimes breath-tested for driving while intoxicated.

The police need a “reasonable cause” to stop motorists in traffic, so you may ask how it can be that DWI checkpoints – also called DUI or sobriety checkpoints – are legal.

DWI checkpoints are legal simply because the U.S. Supreme Court allows police agencies to operate the checkpoints as an exception to the law.

In 1990, the Supreme Court ruled that a state’s obligation to keep the public safe takes priority a driver’s constitutional right to privacy, provided that a checkpoint’s intrusion on the right to privacy is minimal and reasonable.


In the Supreme Court’s judgment, police officers at DWI checkpoints do not conduct “unreasonable” searches and seizures, so they don’t violate anyone’s rights.

Nevertheless, to operate legally, a DWI checkpoint must adhere to some strict rules.

If police officers at a DWI checkpoint violate the law – or violate a motorist’s legal rights – in any way, any DWI charge arising from the incident will probably be dismissed.

Since the ruling in 1990, DWI checkpoints have been legal, but the matter remains controversial.

In fact, a number of states have no checkpoints either because state legislatures have outlawed them or because state courts have found that the checkpoints violate state constitutions.

However, the only state near to New York that does not conduct sobriety checkpoints is Rhode Island. So even if you live in Connetticut, a Connecticut DWI Attorney can help.

What are the rules for a DWI checkpoint in New York? What should you do if you are stopped at a DWI checkpoint? What should you do if you are arrested and charged with DWI?

And what can happen if you are convicted of driving while intoxicated in New York? If you drive in New York, you need to know.


One rule for DWI checkpoints is that the police agency conducting the operation must make a proactive and diligent attempt to notify motorists regarding when and where a checkpoint will be conducted.

Sufficient advance publicity is thought to increase a checkpoint’s deterrent impact while reducing the imposition on the privacy rights of innocent motorists.

The state courts in New York have also determined that police officers at DWI checkpoints must comply with the following guidelines so that no motorist’s search and seizure rights are overlooked or violated:

  • A DWI checkpoint must serve a clear purpose.
  • No officer may violate a motorist’s privacy beyond a reasonable degree.
  • Motorist safety must be a priority. Sufficient lighting is required, and warning signs must be posted.
  • Police officers may not detain a motorist for an unreasonable length of time.
  • Police officers must choose the drivers they stop by using an entirely random method. No profiling of any kind is allowed.
  • A police supervisor must be on the scene to supervise the operation.

If your rights are violated in any way at a DWI checkpoint in Westchester County or anywhere else in New York, it is imperative for you to speak with an experienced Westchester County DWI attorney.

If you are charged with DWI after a violation of your rights, your attorney can ask the judge to dismiss the charge.

If a significant violation of your rights occurred, that’s what the judge will probably do.


It’s more likely to happen over the holidays, but whenever you are driving on a street or highway in New York, you might drive into a DWI checkpoint.

Of course, any time you are approached or stopped by the police, be calm and polite, but protect your rights.

Here are some suggestions if you are stopped at a DWI checkpoint:

  • Stay seated. Roll the window down. After dark, flip on the interior light.
  • Then place your hands atop the steering wheel where they’re clearly seen.
  • Be sure that you can quickly access your vehicle’s insurance information and registration.
  • Never admit or confess anything. If you are asked, “Have you been drinking?” politely say something like, “Officer, I would prefer to exercise my right to remain silent.”

If the law enforcement officers who conduct a DWI checkpoint detain a motorist, they must have a reasonable belief that the motorist is intoxicated.

Their reasonable suspicions cannot be mere hunches but must be based on something like a driver’s slurred speech or bloodshot eyes, the odor of alcohol or marijuana, open containers, or some other tangible indication of impairment.

If the police detain you and ask you to take a “preliminary breath test,” but they have not arrested you, you are not legally required to take the breath test.

The problem is that if you refuse to test, you’ll probably be arrested, and then a breathalyzer test – if requested – is required by law.

Refusal to test after you’ve been arrested is a separate charge in New York, and it’s punishable upon conviction with a fine of $500 and a driver’s license suspension for one year.


A first offense for driving while intoxicated is usually charged as a misdemeanor in New York.

A first DWI conviction is punishable by up to a year in jail and a fine of $500 to $1,000, or both, along with three years of probation and a six-month driver’s license revocation.

Offenders also pay a fee to aid crime victims and an additional surcharge. The costs pile up.

And DWI isn’t the only charge related to drinking and driving in New York. The “legal limit” is a blood alcohol content (BAC) level of 0.08 percent, but a motorist may be charged with DWAI (driving while ability impaired) with a BAC level measuring 0.05 to 0.07 percent.

While it’s an “infraction” rather than a criminal offense, a DWAI conviction is punishable by up to fifteen days in jail and a fine of up to $500.

What’s the best way to deal with driving under the influence in New York? That’s the one answer that’s easy: Don’t Drink and Drive.

Take a taxi, use a rideshare app, or crash on a friend’s sofa, but don’t drink and drive.

If you make a judgment error and you’re arrested – or if you’re falsely accused of DWI and you’re innocent – take no chances with your future and your freedom.

Arrange at once to speak with an experienced Westchester County DWI attorney.

By: Kimberly Pelesz

Family law and criminal defense attorney Kimberly A. Pelesz received a B.S. degree magna cum laude and an M.P.A. degree summa cum laude from Binghamton University. She earned her J.D. from Pace University School of Law in White Plains, where she was selected for Phi Alpha Delta. Her charitable activities include work with My Sisters’ Place in White Plains and the Westchester County District Attorney’s Humane Education Taskforce.

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