New York Criminal Attorney Blog

According to today's newspapers the NYPD Cop accused of killing a woman while driving in an intoxicated condition, had a blood alcohol content of 0.0 indicating that no alcohol was present in the officers blood seven hours after the incident. The blood was not drawn for seven hours after the accident. As discussed in my previous blog, New York drivers arrested for DWI have the right to refuse to take a chemical test. The result of the blood test substantially weakens the case against the officer who is accused of killing the woman while driving drunk.

Early Sunday morning, New York City Police Officer Andrew Kelly, while allegedly driving in an intoxicated condition, struck and killed 32 year old Vionique Valnord in Old Mill Basin, Brooklyn. The accident happened at approximately 12:41 a.m., however, Kelly’s blood was not drawn for more than seven hours. How can this happen? Simple, Officer Kelly exercised his statutory right to refuse to submit to a chemical test.

Let’s start with a brief overview of New York’s “deemed consent” law. To summarize the law; every New York driver is deemed to have given consent to the testing of their breath, blood, urine or saliva to determine the alcoholic and/or drug content of their blood provided the officer has reasonable grounds to believe the driver is impaired or intoxicated and the test is administered within two hours of arrest. See NY VTL § 1194(2)(a)(1), (2) see also 10 NYCRR 59.2 (All samples shall be collected within two hours of the time of arrest).

However, a driver has a qualified statutory right to refuse to submit to a chemical test. The right to refuse is qualified in several ways. Yes, one may refuse to take the test and, absent a court order, no test will be given. However, although one may refuse the test, if properly warned of the consequences, and if they persistently refuse, they may incur a “civil” penalty which includes a fine and the revocation of their driver’s license if the refusal is proven at a DMV refusal hearing. See NY VTL § 1194(2)(b). Further, if the driver, after being sufficiently warned about the consequences associated with refusing, nevertheless, persistently refuses, the refusal can be used by the prosecution at trial. See NY VTL § 1194(2)(f).

Finally, if a driver refuses to submit to a chemical test, that driver can be subjected to a compulsory, court ordered, chemical test. See NY VTL§ 1194(3). Such court ordered compulsory tests are almost always of the blood.

Notably, refusing to submit to a chemical test is not a criminal offense nor is it even a non-criminal traffic infraction. This is distinguished from refusing a breat screening test which is a traffic infraction. Refusals are purely “civil” offenses handled by the Department of Motor Vehicles. See People v. Thomas, 45 N.Y. 2d 100 (1978).

In this case, Officer Kelly exercised his qualified right to refuse to submit to a chemical test. As a result, his refusal can be used against him at trial. But more importantly, in this case, his qualified right to refuse was overcome by the issuance of a court order compelling Officer Kelly to submit to a chemical test to determine the alcohol or drug content of his blood. See VTL § 1194(3)(b).

For more information about Driving While Intoxicated, chemical testing, blood testing or any other question you might have, please contact Tilem & Campbell, PC toll free at 1-888-DWI-COUNSEL or visit us on the web at www.888DwiCounsel.com.

While police officers many times have drivers perform any number of “tests” on the side of the road to determine whether the driver is impaired or intoxicated, only three have been validated by the National Highway Traffic Safety Administration (NHTSA). They are the (1) Walk-and-Turn; (2) One-Leg-Stand; and (3) Horizontal Gaze Nystagmus tests. No other sobriety test (for example, the Alphabet Test, Finger Touch, Finger-to-Nose, Write the Alphabet, Pick up Coins, and others) is validated by the NHTSA. The NHTSA validated these three SFSTs after an extensive study commenced in 1977 by Anacapa Sciences of various Field Sobriety Tests being used by law enforcement throughout the country. As stated above, at the conclusion of the Anacapa study, the only three Field Sobriety Tests validated by the NHTSA were, and remain, the (1) Walk-and-Turn; (2) One-Leg-Stand; and (3) Horizontal Gaze Nystagmus.

It must also be noted that the SFSTs do not determine intoxication or “drunkenness”. In other words, they do not determine whether one is drunk. They are instead designed to determine whether one has a Blood Alcohol Concentration (BAC) above .10.
In order to accurately determine whether one’s BAC is above .10, SFSTs must be administered in accordance with national standards developed by the NHTSA. With regard to accuracy, studies have shown that if the three validated SFSTs tests are properly administered and the driver “fails” all three, there is an 80% chance that the driver has a BAC of .10 or greater. Therefore, even if the driver “fails” all three tests, there is still a 20% chance that his BAC is lower than .10. A 20% error rate surely raises reasonable doubt.

The Horizontal Gaze Nystagmus test is alone 77% accurate in determining a BAC of .10 or greater; the Walk-And-Turn alone is 68% accurate; and the One-Leg-Stand alone is 65% accurate. Accordingly, while the “failing” of these tests might be enough to establish probable cause to arrest, they certainly do not prove guilty beyond a reasonable doubt.

If you have been charged with Driving While Intoxicated (DWI) you need attorneys who are just as knowledgeable in the Standardized Field Sobriety Tests as the officer who arrested you. Tilem & Campbell managing partner, John Campbell, is certified in, among other things, Driving Under the Influence Detection having successfully completed the same eight hour course that many law enforcement members take. This course concentrated on, among other things, the proper administration of the Walk-and-Turn; One-Leg-Stand; and Horizontal Gaze Nystagmus tests.

For more information, contact Tilem & Campbell toll-free at 1-888-DWI-COUNSEL or visit us on the web at www.888DWICOUNSEL.com.

As previously discussed, officers are trained in three different Phases of Driving While Intoxicated detection. Phase 1 involves the officer’s observations of the vehicle in motion, Phase 2 involves the officer’s personal contact with the driver and Phase 3, which I will discuss here, involves Pre-Arrest Screening.

During Phase 3, the officer will determine whether the driver has consumed alcohol and whether such consumption has impaired the driver to the extent that he should be arrested. The main focus during Phase 3 is on the driver’s performance on the Standardized Field Sobriety Tests (SFSTs). During this Phase the officer might also ask the driver to blow into a Portable Breath Test (PBT) to determine the presence of alcohol but the PBT should only be used to support the SFST; it should not be used in place of SFSTs. In New York, the results of a PBT are not admissible at trial (but they are admissible at pre-trial hearings).

The SFSTs not only determine impairment but also whether the driver can perform divided attention tasks. The only three SFSTs validated by the National Highway Traffic Safety Administration (NHTSA) are the (1) Walk-and-Turn; (2) One-Leg-Stand; and (3) Horizontal Gaze Nystagmus. These will all be discussed separately in future blogs.

After the driver has performed the SFSTs, the officer will make a determination with regard to intoxication based upon the totality of the evidence developed during all three Phases of DWI detection.

If you have been arrested for Driving While Intoxicated (DWI) in New York, feel free to contact us at toll-free at 1-888-DWI-COUNSEL or visit us on the web at www.888DWICOUNSEL.com. Those charged with DWI need attorneys who know not the law, but the science and procedures relevant to DWI. Managing partner, John Campbell, is certified in Driving Under the Influence Detection by Blackwater Worldwide having successfully completed the same 8 hour course many members of law enforcement have taken.

As I discussed in a prior blog, Phase 1 of Driving While Intoxicated (DWI) detection involves the officer’s observations of the vehicle in motion. This blog will focus on Phase 2 of DWI detection which involves the officer’s personal observation of the driver once the officer stops the vehicle. Phase 2 involves the officer’s observations during both the stopping sequence of the vehicle as well as the face-to-face interaction between the officer and the driver.

During Phase 2 the officer is looking for such things as bloodshot eyes, difficulty producing or fumbling with the driver’s license, insurance card and registration, dirty or disheveled clothing and alcoholic beverages in the vehicle. The officer will also be looking at the driver’s facial expressions to see if they are consistent with sobriety. The officer will also note if the driver is looking at the officer as they speak or if the driver looking through the officer. The officer will be listening for slurred speech and/or admissions of drinking or drug use, inconsistent answers and abusive language or whether the motorist asks the officer to repeat questions. Other signs the officer is looking for during Phase 2 are the odor of cover-up scents such as mints, mouthwash, perfume or cologne.

While the officer will point out and report any signs of intoxication that were present when the officer observed and interacted with the motorists, the officer never identifies the dozens of signs of intoxication that were not present. That’s the job of a DWI defense attorney. A defense attorney in a DWI case should always point out all the signs of intoxication that were not present.

If you are charged with Driving While Intoxicated in New York State, you need attorneys who know not just the law but the science and procedures associated with DWI. Tilem & Campbell managing partner John Campbell is certified in Driving Under the Influence Detection having successfully completed an 8 course which included training in Field Sobriety Testing including the Walk-and-Turn, One Leg Stand and the Horizontal Gaze Nystagmus test. For more information about New York DWI defense, contact Tilem & Campbell toll free at 1-888-DWI-COUNSEL or visit us on the web at www.888DWICOUNSEL.com.

There are generally three Driving While Intoxicated (DWI) detection phases. Unless there is an accident or the officer comes upon a parked vehicle, Phase 1 is usually the vehicle in motion; Phase 2 of DWI detection is the personal contact phase; and the Phase 3 is pre-arrest screening. In this blog I will discuss Phase 1 – Vehicle in Motion.

The Vehicle in Motion phase involves the officer’s observations of how the vehicle is being operated. In 1997 the National Highway Traffic Safety Administration funded a study which identified specific erratic driving patterns performed those with a BAC in excess of .08. These erratic driving problems include:

Problems Maintaining Proper Lane Position
(1) Weaving
(2) Swerving
(3) Weaving across lane lines
(4) Straddling a lane line
(5) Drifting
(6) Turning with a wide radius
(7) Almost striking a vehicle or other object

Problems with Speed and Braking

(8) Stopping problems (too far, too short, or too jerky)
(9) Accelerating or decelerating for no apparent reason
(10) Varying speed
(11) Slow speed (10+ mph under limit)

Vigilance Problems

(12) Driving in opposing lanes or wrong way on one-way
(13) Slow response to traffic signals
(14) Slow or failure to respond to officers signals
(15) Stopping in lane for no apparent reason
(16) Driving without headlights at night
(17) Failure to signal or signal inconsistent with action

Judgment Problems

(18) Following too closely
(19) Improper or unsafe lane change
(20) Illegal or improper turn (too fast, jerky, sharp, etc.)
(21) Driving on other than the designated roadway
(22) Stopping inappropriately in response to officer
(23) Inappropriate or unusual behavior (throwing, arguing, etc.)
(24) Appearing to be impaired

Studies have shown that there is a 65% probability that the driver is intoxicated if weaving plus one of the other above listed clues are present. If any two cues other than weaving are present the probability that the driver is intoxicated is at least 50 percent. The presence of some cues alone (such as swerving, accelerating for no reason or driving on other than the designated roadway) have probabilities greater than 70 percent.

For more information please contact Tilem & Campbell toll free at 1-888-DWI-COUNSEL or visit us on the web at www.888DWICOUNSEL.com.

Those charged with a New York DWI/DUI or related offenses, should be pleased to hear that New York criminal defense lawyer, John Campbell, the managing partner at Tilem & Campbell recently completed two courses relevant to Driving Under the Influence, Driving While Intoxicated and Driving While Ability Impaired by Drugs. These courses are the same courses that some members of law enforcement take themselves. The knowledge gained in these classes will help Mr. Campbell better cross-examine police officers, toxicologists and others at trial.

With regard to DWI and/or DUI, Mr. Campbell has completed and has been certified by Blackwater Worldwide in Driving Under the Influence Detection. This 8 hour course concentrates on, among other things, the three “validated” Standardized Field Sobriety Tests which are the (1) Walk-and-Turn; (2) One Leg Stand; and (3) the Horizontal Gaze Nystagmus. The course also focuses on Preliminary Breath Screening (which is the handheld device officers sometimes ask a motorist to blow into on the side of the road), and “Red Flags” an officer looks for when observing moving vehicles that indicate a possible intoxicated driver. (weaving, swerving, no headlights at night, wide turns, etc)

Further, Mr. Campbell recently completed a course in, and has been certified by, NIK Public Safety in Narcotic Field Testing. This 2 hour course focused on the field testing of substances to identify illegal drugs such as cocaine and marijuana. Field testing of this type is usually done by law enforcement officers in the field to test substances found during searches, car stops, etc. Mr. Campbell was trained in how to use field testing kits and identify various drugs based upon the test results, how to properly use NIK’s Polytesting system which is utilized when the officer has no idea what the substance is (as opposed to most situations where an officer has an idea of what the substance is), and how to utilize NIK’s reference materials relating to narcotic field testing.

Mr. Campbell was required to pass a competency exam at the end of both courses before receiving his certifications. If you have been charged with any Driving While Intoxicated or related offenses such as Driving While Ability Impaired by Drugs, you need attorneys who know not just the law, but also the science and procedures associated with DWI. In addition to the above-discussed courses, in a continuing effort to provide clients with the best possible DWI defense, the lawyers at Tilem & Campbell routinely attend seminars and classes relating to all aspects of DWI defense. For further information feel free to call us toll free at 1-888-DWI-COUNSEL.

Mortgage Fraud has taken center stage in Westchester County Courts and around New York State. This national problem has taken on extra prominence in New York where property values are high. As a criminal defense law firm that has handled many mortgage fraud cases including headline making cases we are seeing an increased number of cases and increased enforcement by law enforcement authorities.

Indeed, in connection with a high profile mortgage fraud case that this firm is involved with, the Westchester County District Attorney's Office announced the formation of a Mortgage Fraud Unit to investigate and prosecute mortgage fraud in Westchester County. The Westchester County case resulted in the arrest of 8 people, 6 of whom were mortgage professionals and two attorneys.

Mortgage Fraud can take on many different flavors. The Westchester case is alleged to involve "Equity Stripping" which is a way of stealing the equity from a person facing foreclosure. Other cases can involve appraisal fraud, falsely preparing mortgage applications, using straw buyers with good credit to purchase properties, "flipping" properties from one buyer to another, identity theft or a combination of these practices.

The bottom line is that what was tolerated as normal practice several years ago by the banks is now considered fraud once the bank loses money because of a foreclosure or bankruptcy. While banks in the past encouraged "fraud" by loans that promised "no documentation", "light documentation" or "stated income", today they complain that the information they received from borrowers was not accurate.

In addition, victims of mortgage fraud and/or identity theft can have a difficult time navigating through the maze of legal issues related to resolving credit issues and resolving title issues.

These cases can become very complex. Whether you are the victim of mortgage fraud or are suspected of or accused of mortgage fraud, contact us, to speak to an experienced criminal attorney that has specific experience handling New York mortgage fraud cases or Federal mortgage fraud cases.