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Pre-Arrest FAQ




Have you or your loved ones been charged with Driving While Intoxicated?

These cases can range from mild to serious depending on the level of intoxication, whether an accident was involved, and whether this arrest is your first offense? If you have been arrested for DWI, you need to contact our office as soon as possible for a free consultation and case evaluation.


A Driving While Intoxicated by Alcohol or drugs is an unclassified misdemeanor in New York where a person faces up to a year in jail.


It is 1pm, July 4th and you are celebrating Independence Day at home behind your grill. You just had few drinks of your favorite beer, you had a few hot dogs and burgers on the grill, and a few minutes later you get a call from a friend who wants to hang out with  you.

Your friend doesn’t have a car and ask you to pick him up.. You get in the car, you are driving on Queens Blvd and you notice that there is a traffic camera ahead, the  traffic light is slowly changing from green to yellow and in your  mind you have a few more second and instead of breaking, you decided to accelerate, and before you know it, you just blew a red light.

What you didn’t know or didn’t see was a marked NYPD vehicle driving a few cars behind you on the right. Immediately after blowing the red light, you hear the police siren and you see the police lighting in your rear view mirror. You immediately comply and pull over.


As of now, you are being pulled over for a traffic infraction. The police at this point know absolutely nothing except that you have committed a traffic infraction and their goal is simply to issue you a citation for blowing a traffic light. However depending on your interaction with the police in the next couple of minutes, things might escalate or deescalate.



Police Officer: How are you sir? Do you know why I pulled you over?

You: No

Police Officer: You blew a red light. Can I have your license and registration please?

You:  Sure (hand over the license and registration)

At this point, the Police Officer has to make a decision if you blew a red light because you just made a mistake or was that mistake caused by a mental impairment due to alcohol or drugs. If the police officer does not smell an odor of alcoholic beverage, or an odor of marijuana, and not see redness in your eyes, and does not hear impaired or slurred speech, he would have very little basis to continue probing you for DWI, and if no accident was involved, then this interaction with the police may end up in either the police issuing you a citation or giving you a warning.

In this scenario, you are not arrested and the situation has been de-escaled. If you receive a citation you either pled guilty by mail or you go to traffic court to fight the ticket.  Now let’s examine Scenario B, where this police interaction is escalated to a full blown arrest.


It may escalate when the police pull you over and after talking to you about the traffic infraction, the police officer smells on odor of an alcoholic beverage and ask you to step out of the vehicle.

The interaction may proceed in the following way:

Police: Good afternoon sir, do you know why I pulled you over?

This question is extremely important because it begs for an admission. In other words, you may answer in the following ways:

You: Yes I do officer, I blew the red light. Or Yes I do officer, I was not allowed to make the illegal turn. Or yes I do officer, my break light is broken and I know I need to fix it. 

At this point, the police officer has succeeded in getting an admission from you and will certainly make that notation in his memo book and all the police paperwork going forward.  And you can bet that when your case proceeds to hearings and trial,  the officer will tell the judge as he testifies on the stand, that the first thing you said to him was that you blew a red light.

This admission may also be recorded on the police officers body cam which he wears on his chest. Either way, the police officer now has a right to talk to you about the traffic infraction and he has established a lawful basis to pull you over  and probe you further.

Police Officer:  May I see your license and registration?

You: Sure officer. (You remove your license and registration from your wallet and you hand it over to the police)

Police Officer:  Sir, I am smelling alcohol from your breath, have you been drinking?

You: Yes, Officer, I just had a glass of beer, its 4th of July, can you please give me a break?

Police Officer: Sir, would you please step out of the vehicle?

At this point, the Police Officer has a lawful basis (reasonable suspicion) to believe that you have been driving under the influence of alcohol. The only questions for the police officer at this point are: How impaired are?  And are you so impaired, that you are legally intoxicated?


Impaired to operate a motor vehicle is when your blood alcohol level is less than .08. If there is evidence of Driving While Ability is impaired, that is a traffic infraction and will not give you a criminal record.

Intoxicated to operate a motor vehicle is when your blood alcohol level is more than .08 measured on the Intoxilyzer that is administered at the precinct. This machine has to be calibrated and it is usually recorded on video to eventually show the jury or the judge when it comes to trial to support the proposition that you were under the influence of alcohol.


The challenge for the police is that they do not know when you are pulled over to the side of the road how intoxicated you are unless you give them evidence of intoxication. The police may administer a roadside breathalyzer, but these machines are not very reliable and are inadmissible in court to show intoxication. The Police know that the driver has to show a reading of .08 or more on the intoxilyzer in order for the case to be strong in court. This requires the driver to submit to the intoxilyzer at the precinct.

The challenge is it’s impossible for the police to bring every driver that blows a red light to the precinct and check to see if they were intoxicated.  In other words, it would be inefficient for the police to take every suspected driver to the precinct to take the intoxilyzer as it would be time consuming and exhaust police resources and that’s without getting into technicalities about their legal right to do that.

For that reason, the police need more information from you to make a determination. The following factors are considered by police in making that determination of placing you under arrest and requesting that you submit to the intoxilyzer at the local precinct.

Speech: The police are actively observing your speech to hear slurring, cursing, out of control language and confrontation. Stay cool. You might not be intoxicated yet because the alcohol has not had the chance to get into your blood. If you are hot headed, this is the time to relax. The more aggressive and conversational you are, the worse it gets for your case. Remember, the police today have body cams and a lot of what you say and how you say it is now recorded.  And remember, the Police Officer does not know how talkative you are when you are sober and will assume that you are intoxicated if you are talking a lot, particularly if it is not coherent.

Eyes:  The Police Officer is actively looking to see if your eyes are red. “Blood shot red eyes” is the term usually used by the police to describe an intoxicated defendant. This is consistent with the theory that most people who consume alcohol get red eyes. You might be just tired and haven’t slept in days but the police do not know that. Dryness from increase alcohol consumption can cause bloodshot red eyes.  As a result, bloodhshot red eyes are one of the factors Police Officers observe in drivers. In addition, Police Officers may also observe the dilation and constriction rate of pupils as it is short term effect of alcohol consumption. This unfortunately makes adjusting to the surrounding lighting difficult and sometimes impossible for drivers. Police know that and look for these signs as a factor of impairment and intoxication.

Coordination: How are you moving around? Once the police ask you to step out of your vehicle, they are observing to see if you are steady on your feet. The Police Officer may ask you to walk a straight line. They may also ask you to place your right index finger on your nose and count to 10 backwards. The point is to see your coordination abilities. The problem with all of these tests is that they are subjective in nature and it’s hard to say that someone is drunk when we don’t know how they act when they are sober. Also, other factors are equally relevant like, are you wearing heals? Is English your first language? And if you are just nervous dealing with authority? Ultimately, remember that every movement is being observed as a factor for impairment.

Vomiting: The Police Officer is actively observing to see if you have vomited. Vomiting is sometimes cause by consumption of too much alcohol. If the Police Officer asks you to step out of the vehicle, and the first thing you do when you step out of the vehicle is you vomit on the police officers shoes, chances are that observation will be memorialized in all the paperwork associated with your arrest as a sign of intoxication.

Roadside Breathalyzer: The Roadside breathalyzer is another tool the police use to make an assessment of whether a driver’s ability to operate a motor vehicle is impaired under the law. Although this test is not admissible in court because its not reliable, Police Officers request that you submit to this test on the road as another factor to consider whether a driver is intoxicated. The breathalyzer is now sold online and anyone can purchase this small machine to see how it works. You will notice that this machine is not very reliable because it only tests for alcohol in your mouth. The reading can be manipulated just simply by rinsing your mouth with water. For that reason, this is not admissible in court. However, police officers use this machine all the time in helping them make judgment calls on whether you are intoxicated.

Ultimately, after administering the coordination tests, observing bloodshot red eyes, slurred speech, vomiting, and administering the roadside breathalyzer, the police officer may place you under arrest. What Now?

You are transported to the 112 Precinct in Queens where the Intoxilyzer is administered.  The administration of this test is preceded by reading to the defendant his Miranda warning while it is all recorded by a video camera at the precinct.


As you sit on the bench inside the 112 precinct waiting for the police officer to calibrate the intoxilyzer, you have to decide if you are going to be taking the intoxilyzer. This machine is considered pretty reliable by most courts and will immediately notify the police of its results and will become part of the evidence used against you by the prosecutors to prosecute you for DWI. Before you decide on whether to take the intoxilyzer, you should know the consequences and there are two that are important.


When you get your driving license you form a contract with the state. The agreement is that if you get pulled over and the police suspect that you are intoxicated, you will voluntarily submit to the Intoxilyzer. If you decide not to submit to the Intoxilyzer, well, you kind of broke the agreement, so NY State will suspend your license for at least one year. The penalties for not taking the Intoxilyzer increase with the second and third time. So for someone who absolutely needs to drive, not submitting to the intoxilyzer at the precinct will revoke your ability to drive for a period of at least one year, even if, it is later determined that the criminal case against you is dropped and you are exonerated of the criminal charged, you may still have your license revoked for a period of one year.


Submitting to the intoxilyzer can also prove that you were not intoxicated. Many times, drivers may feel like they are intoxicated under the law, that is that the reading is .08 or more but the reading comes back very low like .02, which may prove that they were not intoxicated at all.

However, if your intoxilyzer demonstrates a very high reading, that reading becomes evidence of a DWI that can generally be refuted only when there is a long delay between time of driving and time of intoxilyzer submission.

Ultimately if you are arrested and charged with a DWI, the attorneys at the Law Office of Boris R. Nektalov understand that these cases are complicated and usually involve individuals with various degrees of alcohol or drug addiction.

We are well familiar with all the diversion programs that are available for individuals who wish to get treatment for their additions.  We also understand that many times, the evidence does not rise to the level of a purported crime and that criminal prosecutions are motivated by overzealous prosecutors or police incompetence.

Let Boris R. Nektalov share with you their decades of experience so that you can make the right decisions throughout every step of your case.

Call the Law Office of Boris R. Nektalov now at (718) 849 7272 and schedule a free consultation.

Let us help you!

Please feel free to contact us if you have any questions.

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