Recently, Bruce / Caitlyn Jenner announced to the world that he was actually a she. And while I applaud Ms. Jenner for having the courage to "come out," it got me thinking about how the transgendered community is treated by the New York City Police Department (NYPD) cops.

Everyday, hundreds of people are searched by the NYPD during traffic violations like Driving While Impaired (DWI) aka Driving Under the Influence (DUI). Cops of the same gender usually perform post arrest searches. But, what would happen if Caitlyn Jenner is arrested for a DWI / DUI in New York City while dressed as a woman and her ID says “Bruce – White – Male.” Would it be okay for a male officer to search Caitlyn Jenner after the arrest? Lets find out.

Typically, an NYPD officer of the same gender conducts post-arrest searches. But how would an NYPD officers determine Caitlyn's “gender” after the arrest? Does Caitlyn / Bruce Jenner's appearance define her gender? Would Caitlyn's or Bruce's anatomy define gender? Would Caitlyn or Bruce's gender be defined by X and Y chromosomes?

In New York City (NYC), according to NYPD’s Official Patrol Guide – General Search Guidelines states, that if

An arrestee objects to the gender of the member assigned to perform the search [the supervisor will assign a] member of the gender requested by the arrestee consistent with officer safety and resource availability.” PG 208-05.

The Patrol Guide goes on to emphasize that, “Under no circumstances shall [cops] conduct searches for the purpose of determining gender.” PG 208-05.

Therefore, if Caitlyn or Bruce Jenner is arrested for a DWI / DUI or any other crime in New York City, Caitlyn can request that a female search her and “under no circumstances” can an NYPD officer search Caitlyn Jenner, post arrest, in order to determine Caitlyn Jenner's sex.

The following post was solely intended to educate the public at large. And while the NYPD rules and policies are completely authentic, the situation was 100% fictitious.

The Patrol Guide goes on to emphasize that, “Under no circumstances shall [cops] conduct searches for the purpose of determining gender.” 

Therefore, if Caitlyn Jenner is arrested for a DWI / DUI or any other crime in New York City, she can request that a female search her and “under no circumstances” can an NYPD officer search Caitlyn Jenner in order to determine her sex. 



The following post was solely intended to educate the public at large. And while the NYPD rules and policies are completely authentic, the situation was 100% fictitious.

A person may consume alcohol and operate a motor vehicle IF the alcohol does not impair a person's ability to operate a motor vehicle.  

According to the laws in New York, "A person’s ability to operate a motor vehicle is IMPAIRED by the consumption of alcohol when that person’s consumption of alcohol has actually impaired, to any extent, the physical and mental abilities which such person is expected to possess in order to operate a vehicle as a reasonable and prudent driver." See NY jury instructions for driving while ability impaired VTL 1192(1). 

Imagine this if you will.  Timmy just turned 21 years old and decides to go down to the local bar and celebrate his birthday by having a drink.  A long time patron of the bar, Norm, just arrives after work and overhears Timmy saying that it was his birthday and offers to buy Timmy his first drink.  Both only have one drink.  After his one and only drink, Timmy feels terrible; light headed, nauseous, experiences loss of balance, etc.  and decides to drive home.  Norm, on the other hand, feels just fine and gets a call from his boss to get back to the office for an emergency meeting.  Tommy and Norm leave the bar, get into their cars and start driving.  Both were pulled over at the identical time and place for going 40mph in a 35mph zone.

The officer asks Tommy and Norm if they have been drinking and both admit to the one alcoholic drink.    The officer asks both to exit their vehicles.  Norm is standing as straight as an arrow with no signs of impairment.  Poor Timmy on the other hand, can't stand straight, keeps losing his balance, his speech is slurred and vomits on the officer's shoes.  

Are Tommy and Norm both guilty of driving while impaired under New York law?  Alcohol affects people differently.  Factors such as, weight, height, empty stomach, tolerance for alcohol, etc. all play a part in how alcohol affects you, thereby possibly impairing your ability to drive.  So many of my clients are good, honest people that admitted to the police that they had a drink.  They come into my office and say, "look, I'm guilty! I had a beer and drove home."  I have to explain to them that having a drink and driving isn't necessarily a crime according to New York DWI law 1192 (1).  I explain to them that a prosecutor always has the burden to prove, beyond a reasonable doubt, that my client's ability to drive was "actually impaired."  

New York has a good chance of proving (remember the prosecutor has the burden to prove guilt) that poor Timmy was DWI.  However, New York will have a very hard time proving that Norm is guilty of DWI. That is why I can say that admitting to having a drink and driving isn't by itself a crime in New York.  

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