New York Criminal Attorney Blog

So you have been charged in New York with Driving While Ability Impaired by Drugs (VTL 1192(4) or VTL 1192(4-a) if it’s a combination of drugs and alcohol) – specifically, the drug you are alleged to have ingested is cocaine. What comes next? Many times the officer who makes the initial stop is not a Drug Recognition Expert (DRE) so he might call for one to come to the scene. I will discuss DREs in a later blog. But typically, the arresting officer makes a few observations – dilated pupils, fidgety, talkative and of course, you admit to ingesting cocaine.

Once the arresting officer has your admission that you ingested cocaine, he will ask for a urine sample as opposed to a breath sample in a typical Driving While Intoxicated case. However, unlike a Breathalyzer test which supposedly can give a definitive Blood Alcohol Concentration based upon the alcohol present in your lower lung air, the urine test for cocaine can only tell us that there are cocaine metabolites in your urine thus establishing that the drug was used at some point in the past.

In fact, unlike with alcohol where the Legislature has set a .08 % blood alcohol content, as a cut off above which you are presumed intoxicated, with drugs, there is no such line of demarcation. Therefore, not only must the prosecution prove that you ingested a drug, they must also prove that such ingestion impaired your ability to drive with no regard for the amount of the drug in your system. In other words, there is no law in New York that says if one has a certain amount of nanograms per milliliter of urine, they are presumed impaired.

This proves very beneficial for the defendant because, the presence of cocaine metabolites in one’s urine only indicates that the drug was used in the past. No conclusion can be drawn about the degree on one’s impairment from the cocaine, if any, at the time of the urine testing. In fact, the amount of cocaine metabolite concentration in one’s urine tells us absolutely nothing about the amount of cocaine in one’s blood. There is no urine to blood ratio with regard to cocaine metabolites. Any toxicologists who says there is any such relationship is mistaken. Period.

In fact, famed toxicologist and pathologist Steven Karch has written that any attempt to infer impairment based upon urine concentrations of cocaine is “pure folly”. Without a blood test, it is impossible to for an expert to state with a reasonable degree of medical certainty that the defendant was impaired by cocaine based upon a urine test.

If you have been charged with driving under the influence of drugs in New York, you need experienced attorneys who are not just experienced with criminal defense but who are also well versed in the science behind your charges. Attorneys who can cross examine the People’s expert with knowledge of the science involved that not many attorneys have. We just don’t ask the standard scientific questions that so many attorneys ask without really knowing what they are talking about. We know these tests, we know the science behind them and we put the prosecution to the test. For more information call toll free 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.

Posted by John Campbell | Permalink | Email This Post | Comments (0)

Posted In: CRIMINAL PROCEDURE , DWI/DWAI

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The United States Supreme Court ruled yesterday, that criminal defendants have a constitutional right to cross-examine the scientists who prepare reports which are introduced at trial. The list of scientists would include chemists who test for the presence of controlled substances, fingerprint analysts and ballistics experts as well as many others. Although the ruling is an important one for the rights of those accused of crimes the ruling is likely to have little impact in New York where State laws already gives defense lawyers the right to cross-examine scientific witnesses.

The ruling is an extension of the 2004 Supreme Court decision Crawford v. Washington which limited the permissible uses of hearsay in criminal trials under the Sixth Amendment Confrontation Clause. The Supreme Court seems to be expressing continued concerned over the use of hearsay (out of Court statements) in criminal trials.

If you or a loved one stand accused of a crime or have been convicted of a crime based upon hearsay, contact one of the experienced criminal defense lawyers at Tilem & Campbell.

Posted by Peter Howard Tilem | Permalink | Email This Post | Comments (0)

Posted In: CRIMINAL PROCEDURE , IN THE NEWS

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A Westchester County substitute school teacher was arrested last week and charged with Assault in the Third Degree (misdemeanor assault), Endangering the Welfare of a Child and Harassment for an incident involving a third grader in his gym class. According to police the teacher allegedly taunted and then assaulted the student after the student came at the teacher in a New Rochelle, New York public school. The case has received a great deal of media attention and the teacher, Daniel Sanabria, has now hired the White Plains criminal defense law firm, Tilem & Campbell, to defend him against the criminal charges.

The Westchester Journal News extensively quotes Tilem & Campbell, partner Peter Tilem about Mr.Sanabria's action in the case. According to the Journal News article, both Mr. Sanabria and criminal defense lawyer Peter Tilem are disputing the allegations. An article has also been featured in the New York Post and stories have been run on cable news Channel 12.

Mr. Sanabria is due in New Rochelle City Court next week where he is expected to defend the charges.

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Posted In: CRIMINAL PROCEDURE , IN THE NEWS

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A recent change in New York Vehicle & Traffic Law sec. 1806 will make it much harder to fight traffic tickets in New York State. Prior to New York April 7, 2009, New York law made it clear that in most cases a person should only have to appear one time to fight a routine traffic infraction such as speeding, unsafe lane change or failure to signal. The Vehicle & Traffic Law made it clear that upon receipt of a "not guilty" plea from a motorist the Court was required to schedule the matter for a trial. On the trial date the motorist could plea bargain or proceed to trial. Judges who violated this rule faced sanctions from the Commission on Judicial Conduct. The Commission found that judges that set cases down for a "pre-trial" conference rather than trial were putting an unnecessary burden on motorists who would then feel coerced to plead guilty rather than appear in Court multiple times for a rather routine matter.

Well, the New York State Legislature and Governor decided that coercion was the best way to resolve New York traffic tickets and have now amended the Vehicle & Traffic Law to require Courts to send motorists an "appearance" date rather than a "trial" date. This law seems to require motorists to appear a minimum of two times to fight their traffic tickets.

Since New York State Troopers are not permitted to plea bargain their tickets and many localities do not have prosecutors to handle those tickets, we have to wonder both what the purpose is of holding such a Court appearance? and what would happen at that appearance?
In any case as noted by the New York State Commission on Judicial Conduct, this practice is likely to coerce many guilty please.

Motorists who receive tickets need to understand that experienced traffic lawyers can make these appearances without the motorist being present and can usually resolve these tickets with reduced or no points. Since experienced traffic lawyers generally handle several cases in a Court at one appearance they can offer very reasonable rates to fight tickets. Traffic lawyers can save the motorist from making multiple appearances, save the motorist money, save the motorist points, save the motorist the driver responsibility assessment and save the motorist from insurance increases.

If you wish to fight a ticket contact one of the experienced traffic court attorneys at DrSummons.com.

Posted by Peter Howard Tilem | Permalink | Email This Post | Comments (0)

Posted In: CRIMINAL PROCEDURE , TRAFFIC

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New York State traffic offenses such as speeding tickets, DWI's, Driving with a Suspended License and other driving infractions and crimes are getting more expensive. New York State already imposes surcharges totaling $85 for any traffic infraction over and above any fine. The total Surcharge is $80 in City Courts. However, the law imposed a cap, or maximum surcharge of $100 per incident which meant that if a motorist was convicted of multiple tickets the maximum surcharge could be $100. In a memo sent to all New York State City, Town and Village Courts, the Office of Court Administration has notified the Courts that effective for New York Vehicle and Traffic Law (VTL) offenses committed after July 6, 2009, the cap for mandatory surcharges was raised to $180.

The calculations are complex because over the years, as a way to increase revenue, New York has imposed an increasing number of fees on all types of convictions especially traffic violations. For example the $85 surcharge imposed on a routine traffic infraction such as speeding or passing a red light actually includes a $55 mandatory surcharge, a $5 crime victim assistance fee, a $5 town and village fee if the conviction is not in a City Court, and a $20 additional surcharge. The new $180 cap only applies to the mandatory surcharge and crime victim assistance fee. So if you are convicted of 10 routine traffic infractions, the surcharges will total $180 (the "cap"), plus $200 (the $20 additional surcharge 10 times) plus $50 (the town and village fee 10 times).

A conviction for a DWI can cost $400 just in surcharges. That's excluding the fine of between $500 and $1000. Even a conviction for Driving While Ability Impaired by Alcohol, a traffic infraction, carries surcharges of $260. Additionally, suspension lift fees (suspension termination fees) have gone up from $35 to $70 and the cap on these fees has doubled to $400.

The bottom line is that simply pleading guilty to and paying New York traffic tickets has gotten very expensive. Routine tickets can result in fines, surcharges, imposition of the driver responsibility assessment and insurance increases and/or surcharges. If you receive a traffic ticket contact an experienced New York traffic Court attorney or visit DrSummons.com.

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Posted In: CRIMINAL PROCEDURE , DWI/DWAI , TRAFFIC

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As experienced New York DWI attorneys, we deal with many different types of New York DWI cases. Many times in a New York Driving While Intoxicated (DWI) case, the motorist will have an allegedly high Blood Alcohol Concentration (BAC) but yet perform well on Field Sobriety Tests (FSTs) such as the “Walk-and-Turn”, “One Leg Stand”, and “Finger-to-Nose” tests. Also, many times, despite a high BAC, the motorists will appear fine on a video. When this happens, defense attorneys argue the obvious – the Breathalyzer was not working properly and therefore, the high BAC score was incorrect. Why else would the motorist perform well of the FSTs and appear fine on the video?

In an effort to try and explain this apparent discrepancy between the motorists BAC score, the prosecution will try to offer “Tolerance” Evidence. In other words, the prosecutor will try to make the jury believe that the reason the motorists performed well of the FSTs but yet had a high BAC is because the motorists is a chronic drinker who has been drinking heavily for a long time and therefore, has developed a tolerance to the effects of the alcohol.

However, the prosecutor should not be allowed to offer evidence regarding the motorist’s tolerance where they have no evidence that the motorist is in fact a heavy drinker and has therefore developed a tolerance. Without knowing the motorist’s drinking history and whether they were in fact a heavy drinker, tolerance evidence is completely irrelevant.

If you have been charged in New York with Driving While Intoxicated or Driving While Ability Impaired, call one of the experienced DWI attorneys at Tilem & Campbell toll free at 1-877-377-8666 for a free consultation. We handle cases throughout New York including White Plains, Greenburgh, Yonkers, New Rochelle, Mamaroneck and New York City as well as all other courts throughout the downstate area. You can also visit us on the web at www.tilemandcampbell.com.

Posted by John Campbell | Permalink | Email This Post | Comments (0)

Posted In: CRIMINAL PROCEDURE , DWI/DWAI

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The difference between a New York criminal conviction for Driving While Intoxicated and a non-criminal conviction for the violation of Driving While Ability Impaired lies in the extent of the driver’s impairment. In fact, where a defendant is charged with Common Law Driving While Intoxicated, it is a common strategy for an attorney to ask the jury to find the defendant not guilty of Common Law Driving While Intoxicated (VTL 1192(3)) but guilty of the lesser included offense of Driving While Ability Impaired (VTL 1192(1)). Driving While Ability Impaired is a non-criminal traffic infraction while Driving While Intoxicated is an unclassified misdemeanor.

"Impairment" means that the defendant, by voluntarily consuming alcohol or drugs, has actually impaired, to any extent, the physical and mental abilities which he or she is expected to possess in order to operate a vehicle as a reasonable and prudent driver. “Intoxication”, however, is defined in New York as a greater degree of impairment which is reached when the driver has voluntarily consumed alcohol to the extent that he or she is incapable of employing the physical and mental abilities which he or she is expected to possess in order to operate a motor vehicle as a reasonable and prudent driver.

Therefore, one is impaired if their ability is impaired “to any extent” while to be intoxicated one must be totally incapable of operating the vehicle. It would appear that proving intoxication under this totally incapacitated standard would be difficult. However, impairment would be much easier to prove because all that is required is the slightest impairment – i.e., impairment “to any extent”.

If you have been charged in New York with Driving While Intoxicated (DWI) or Driving While Ability Impaired (DWAI), call Tilem & Campbell toll free at 1-877-377-8666 for a free telephone consultation. Our attorneys are experienced with all aspects of DWI defense.

Posted by John Campbell | Permalink | Email This Post | Comments (0)

Posted In: CRIMINAL PROCEDURE , DWI/DWAI

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New York City Administrative Code §10-131 prohibits the possession of common items which are lawful in most other parts of New York State and the Country. As a criminal defense attorney with experience in so many different weapons offenses I see many clients who innocently bring these items into New York City and find themselves facing extremely serious criminal charges.
A brief list of the items banned in New York City is as follows:

1. Air Pistols and Air Rifles. The Sale and possession are illegal in New York City pursuant to 10-131(b).

2. Sale of certain toy pistols pursuant to 10-131 (d) is illegal in New York City.

3. Sale or possession of mace, tear gas or pepper spray is illegal in New York City without a permit pursuant to 10-131(e). This is so even though in 1996 the New York State legislature repealed the law making self-defense sprays illegal state wide. These self-defense sprays are currently legal, without a permit outside New York City.

4. Sale or possession of certain toy or imitation pistols is illegal in New York City. 10-131 (g).

5. Carrying or possessing rifles and shotguns. These guns are available for sale outside of New York City without a license. Possessing them in New York City without a special license can be a misdemeanor or an offense. 10-131 (h).

6. It is illegal to sell or dispose of ammunition or ammunition feeding devices in the City of New York unless you are “authorized pursuant to law.” However a person who lawfully possesses such items may dispose of them to a dealer in firearms. 10-131 (i) 1.

7. It is unlawful for a gun dealer to sell ammunition to a licensed gun owner if he sells ammunition that cannot be fired from the firearms the gun owner is licensed to possess. 10-131 (i) 2.

8. It is illegal for a person not authorized to possess a pistol in New York City to possess any pistol ammunition. This is so even if you are authorized to possess a pistol some place outside of New York City and the ammunition is in your “shooting bag” in the trunk of your car. 10-131 (i) 3.

9. Even if you have a license to possess a pistol in New York City it is unlawful to possess ammunition of a different caliber. 10-131 (i) 4.

10. It is illegal to possess an ammunition feeding device (a magazine) unless you are authorized to possess a pistol that uses such device or except under other limited circumstances. 10-131 (i) 6.

11. It is unlawful for anyone to dispose of an ammunition feeding device except a gun dealer may sell one to a person authorized to possess the same caliber of pistol or a person authorized to possess it may sell it to a gun dealer. 10-131 (i) 7.

12. New York City has its own definition of assault weapons under Administrative Code Section 10-303.1. Possession of Assault Weapons in New York City are a crime and can subject a person to additional Civil Penalties of up to $10,000 per Assault Weapon.

The bottom line is be careful in New York City. Many people who lawfully possess these items in other States or Cities get caught in their cars or at the airports and find themselves facing serious charges. If you find yourself charged with any violation of these laws remember many of these offenses are crimes and can subject you to jail, fines, probation and leave you with a permanent criminal record.

If you have any questions or have been charged with any criminal offense contact us to discuss your specific circumstances.

Posted by Peter Howard Tilem | Permalink | Email This Post | Comments (0)

Posted In: CRIMINAL PROCEDURE , GUN CRIMES , WEAPONS OFFENSES

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With four confirmed cases of swine flu on Riker's Island and 4 probable cases, fear has gripped both inmates and corrections officers alike who are confined on Riker's Island. The scare has already disrupted visits and Court appearances in New York City criminal courts and will likely get worse before it gets better. The situation is so bad that the union representing the corrections officers has filed a letter of complaint with the Department of Labor. For families of inmates in the massive New York City Jail system the outbreak means that visits will likely be canceled in many jails. In addition movement within the jails may be curtailed. If you or a loved one are currently confined on Rikers Island or any New York City Jail contact one of the experienced criminal defense lawyers at Tilem & Campbell.

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Posted In: IN THE NEWS

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Westchester County District Attorney Janet DiFiore announced the results of a three month sting operation which used underage criminal justice students to purchase alcohol at bars, restaurants and liquor store. The sting resulted in the arrest of 28 people but also demonstrated that establishments enforced the drinking age 81% of the time. The 28 people arrested were charged with selling alcohol to minors.

During this season when Proms, graduation parties and Memorial Day Weekend parties are in high gear it is important to remember the potential consequences of underage drinking and especially of underage drinking and driving. New York has a "zero tolerance" for people under 21 years of age driving with any alcohol in their system. In addition, New York imposes enhanced, severe penalties for minors who drink and drive.

If you or a loved one has been charged with an alcohol related offense in New York, contact one of the attorneys at Tilem & Campbell.

Posted by Peter Howard Tilem | Permalink | Email This Post | Comments (0)

Posted In: CRIMINAL PROCEDURE , IN THE NEWS

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Local, County and New York State Police begin their annual "click it or ticket" campaign today which means an increase in seat belt tickets across the State and the Region. The increased enforcement will take the forms of patrols and checkpoints and will likely lead to an increase in traffic tickets of all kinds. In addition to the New York State Police, County and local police in Westchester, Rockland, Orange Counties and beyond are expected to participate. The program is scheduled to last two weeks.

While Seat belt violations in New York carry no points and a fine of $50, it is important to remember that no seat belt or child restraint for a child less than 16 years of age carries 3 points per violation in New York. In addition, Police will be looking for other violations such as speeding, unsafe lane change, failure to signal and equipment violations as they patrol so drive carefully.
If you receive a traffic summons contact us DrSUMMONS.com or 877-DRSUMMONS

Posted by Peter Howard Tilem | Permalink | Email This Post | Comments (0)

Posted In: IN THE NEWS , TRAFFIC

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Anyone arrested for Driving While Intoxicated in New York should be offered an opportunity to submit to a chemical test of their blood, breath or urine. If an offender refuses the chemical test in New York their license may be revoked for a period of one year regardless of whether or not they are ultimately convicted of DWI (Driving While Intoxicated) or DWAI (Driving While Ability Impaired). Due process requires that before your license can be revoked for one year, a hearing must be held to determine whether or not you refused to submit to a chemical test. Experienced criminal defense lawyers who handle DWI cases are aware of the value of these hearings to their clients.

A New York, DWI refusal hearing is conducted by a DMV (Department of Motor Vehicles) administrative law judge who must find that several factors occurred:

1. That there was reasonable cause (probable cause) for your arrest for DWI, DWAI or any violation of section 1192 of the Vehicle and Traffic Law,
2. Whether or not the arrest of the person was lawful,
3. Whether a person arrested was given adequate warnings of their refusal to submit to a chemical test , and
4. Whether the person actually refused to take the test.

The stakes at the refusal hearing are very high. If you win, your license, which was temporarily suspended at your arraignment on the criminal case will be lifted and your driving privileges will be fully restored. If you lose a New York refusal hearing your license will be revoked for a minimum of one year regardless of what happens in your criminal case. In addition, this is an opportunity for your lawyer to cross-examine the police officer regarding topics that go right to the heart of the criminal case pending against you at a very early stage of the proceedings.

These cases are winnable and experienced DWI lawyers can and do win these cases. In addition to winning these cases the opportunity for your attorney to cross-examine the main witness (or witnesses) against you is invaluable. The hearings are recorded and a transcription of the hearing can be extremely valuable in preparing your defense. It is very rare in criminal cases to be able to examine a witness at such an early stage in the proceeding.

In a nutshell, these extremely important hearings are not taken seriously by both attorneys and motorists alike but they should be carefully examined. No one should waive their hearing without seriously considering the benefits of waiving the hearing against the benefits of participating in the hearing and a person who wishes to challenge their DWI charges should never waive the refusal hearing. If you are charged in New York with DWI, DWAI, Driving While Impaired by Drugs or any other violation of section 1192 of the VTL, contact attorneys who are experienced with the charges and who regularly participate in the DWI refusal hearing.

Posted by Peter Howard Tilem | Permalink | Email This Post | Comments (0)

Posted In: DWI/DWAI

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