New York Criminal Attorney Blog

In another stunning victory for Westchester County based DWI attorney John Campbell, a Yates County man had his conviction reversed on appeal because the Trial Judge allowed his own mother-in-law to sit on the jury.

In a December 20th Decision, Acting Yates County Court Judge Dennis Bender reversed Richard Regan’s July, 2011 Driving While Intoxicated Conviction because the trial judge, Benton Town Justice Dave Grace, allowed his mother-in-law to serve on the jury. While Regan’s trial counsel, Dave Mashewske failed to object to Judge Grace’s mother-in-law sitting on the jury, the County Court placed the ultimate responsibility on Judge Grace. In reversing the conviction, the County Court held that Judge Grace: “should not have permitted his mother-in-law to serve on the jury and she should have been disqualified on the Court’s own initiative.” Allowing Judge’ Graces mother-in-law to sit on the jury, argued Campbell, violated Regan’s constitutional right to a fair trial by a panel of impartial jurors.

The victory is one of a recent string for Mr. Campbell who just last week had all of the evidence in a Westchester County DWI suppressed. In that case, Mr. Campbell was able to successfully argue that the driver was unlawfully stopped and seized because the police office lacked probable cause that the driver was speeding.

In the Benton Town case, Mr. Regan unfortunately served six months in jail after his conviction for DWI and before hiring Mr. Campbell to file the appeal. As a result of the successful appeal Mr. Regan's conviction was thrown out. It is unclear at this point whether the prosecutor will seek a new trial.

These two recent victories serve to solidify Mr. Campbell's reputation as one of the most skilled, knowledgeable and successful DWI's in New York State. While victory can never be assured, any one charged with a DWI in New York would be well advised to contact Tilem & Campbell for a fast, free and friendly telephone consultation with Mr. Campbell. Many of Mr. Campbell's greatest victories have been after another attorney has advised his/her client to plead guilty or as in the case of Mr. Regan after another lawyer lost the case. Before pleading guilty or going to trial with any lawyer, consider a second opinion from Mr. Campbell.

Recently we reported in our blog that a DWI conviction was vacated on grounds of ineffective assistance of counsel where the lawyer simply had his client plead guilty to Driving While Intoxicated without conducting an investigation into the evidence in the case. Now, just last week, the United States Supreme Court reversed a conviction where a defense attorney neglected to tell the defendant about a plea offer and the defendant was later sentenced to a much more lengthy prison sentence than he would have gotten if he accepted the plea deal.

In the case of Missouri v. Frye the United States Supreme Court for the first time recognized that the 6th Amendment to the United States Constitution ensures that a defendant's right to effective representation extends to the plea bargain process and that if the lawyer is ineffective during the plea bargain process, the defendant may be entitled to reversal of his conviction.

In the Frye case, Galin Frye was accused of driving with a revoked license. Since he had been convicted of this same offense three times in the past he was facing a felony charge which carries up to 4 years in prison. During the pendency of the case, the prosecutor told Frye's lawyer that Frye could plead guilty to a misdemeanor and receive a sentence of 90 days. Frye's lawyer never conveyed that offer to him and he subsequently plead guilty and received three years in prison. On appeal Galin Frye argued that that we was denied his right to counsel because of ineffective of assistance of counsel. His conviction was reversed.

In the second decision, issued the same day last week, the United States Supreme Court agreed with two lower Federal Courts that reversed the convictions of a defendant who rejected a plea deal because of his lawyers erroneous advice.

In Lafler v. Cooper, Anthony Cooper shot the victim and was charged with Assault with Intent to Murder under Michigan Law. The prosecutor offered a plea deal that carried a sentence of 51-85 months in prison. Anthony Cooper on the advice of his attorney refused the plea deal and was subsequently convicted after trial and sentenced to a term of imprisonment of 185-360 months, more than three times the plea offer. Cooper's lawyer had erroneously advised him to reject the plea deal because in the opinion of the lawyer the prosecutor could not prove intent to murder since all of the gun shots landed below the waist. This advice was wrong.

In the Cooper case, as in the Frye case, the Supreme Court recognized that the right to effective representation includes the right to effective representation during plea bargaining. According to a recent New York Times article 94% of cases in State Court and 97% of cases in Federal Court are resolved by plea bargains. In a system where the overwhelming majority of cases result in plea bargains, it seems that these two cases offer defendants critical constitutional protections that are at least as important as trial rights.

As these cases make clear, a criminal defense lawyer must not only communicate with his or her client, particularly about plea offers but must also offer competent advice about whether or not to accept those offers.

If you are charged with Driving While Intoxicated [VTL 1192(2), (3)] in New York, the criminal defense attorney you choose can be one of the most important decisions of your life. Are you going to retain a “read-em-and-plead-em” hack, the lawyer who handled the closing when you purchased your home, the lawyer who drafted your Will or are you going to retain a lawyer well versed in the law, science and procedures associated with DWI cases?

Are you going to choose an attorney that has experience not just in DWI cases; but also in winning Driving While Intoxicated trials? Make no mistake about it, district attorneys and prosecutors know full well which attorneys are capable of actually taking a DWI case to trial. An attorney’s trial ability often plays a role in the plea bargaining offer. If your attorney has no trial experience, plea bargains all of his or her cases, always backs down at the last minute and accepts whatever offer the prosecution has made and has shown him or herself to be incompetent in the few hearings or trials he or she has done, the prosecutor has no real concern that the case will ever go to trial. If the prosecutor knows that in the end, your attorney will “plea you out” the prosecutor has no incentive to offer anything other than their standard policy offer.

Of course, accepting a plea bargain offer in certain cases is advisable. However, a detailed “risk/benefit” analysis must first be done. If the prosecution wants you to plead guilty to misdemeanor DWI with three years of probation and you’re a first time offender and the case did not involve any accident or injuries; their might not be any risk associated with going to trial because it’s very unlikely you would be sentenced to anything more than probation if you lost at trial.

A lawyer should not advise a client to accept a plea bargain unless that attorney has thoroughly investigated the case. That includes listening to, and investigating, not only a defendant’s claim of innocence, but the facts, circumstances and issues concerning probable cause to stop the vehicle, the legality of the roadblock, the administration of Standardized Field Sobriety Tests, the timeline of events, the officers involved, the administration of any breathalyzer testing, blood drawing, urine collecting and other issues that can arise in DWI cases.

In certain Driving While Intoxicated cases it might be advisable that the attorney visit the scene of the stop. The attorney might view the area where the defendant performed the Standardized Field Sobriety Tests. The attorney might even travel the route the defendant traveled prior to being pulled over. If the defendant claims he or she only had one or two drinks, credit card statements from the restaurant or other establishment where the defendant was prior to being stopped by the police might be helpful. Interviews with employees of the establishment where the defendant drank might reveal a witness to defendant’s drinking. Are their any witnesses to defendant’s driving?

Only after a searching and diligent review and investigation of the above factors as well as the relevant statutes, regulations and case law can an attorney render an opinion on a plea bargain offer. Most importantly however, the attorney who conducts the case review must be extremely knowledgeable and experienced in DWI defense. An attorney can spend countless hours reviewing and investigating all aspects of a Driving While Intoxicated case with zealous enthusiasm, however, if that attorney simply doesn’t know the laws, rules, regulations, case law, science, toxicology, breath testing, chemical testing, police procedures, etc., that lawyer’s opinion on a plea bargain offer will be no better than flipping a coin.

In a recent decision, the New York State Appellate Division unanimously affirmed a lower court ruling which granted a defendant’s motion to vacate his guilty plea in a Driving While Intoxicated case. The Court concluded that “[d]efense counsel failed to conduct any investigation, make any motions, or even view the video of defendant’s breathalyzer test before negotiating a plea bargain whereby defendant would plead guilty to the top count of the accusatory instrument.” People v Rivera, 2012 NY Slip Op 43, 1 (1st Dept. Jan. 5, 2012).
In support of its decision, the Court observed that there were defenses that should have been investigated including matters affecting the accuracy of the breathalyzer result. Furthermore, the Court explained that, because the defendant had no prior record and no accident occurred, it was extremely unlikely that he would have received a jail sentence had he lost at trial. Therefore, the “defendant received little, if any benefit, by pleading guilty to the top count without ever having received even a minimally accurate assessment of the strength of the People's case.” Id.

The Rivera decision unfortunately does not indicate the sentence defendant received as part of the plea deal or what his Blood Alcohol Concentration was. In fairness to the attorney that represented defendant in Rivera, if his BAC was alleged to be, for example .16 or .17 and the plea offer didn’t require probation, than Rivera did receive some benefit. Specifically, he avoided probation, which can be difficult for some. For example, in Westchester, avoiding probation is a major consideration on DWI cases because DWI probation in Westchester County can be fairly onerous.

Nevertheless, the Rivera decision should put all defense attorneys on notice that it is unacceptable to advise a DWI client to plead guilty to the top charge without first conducting any real investigation into the strength of the prosecution’s case. The Rivera decision should also put everyone who is charged with DWI on notice that they should speak with several attorneys and get several opinions prior to retaining an attorney. And, the attorney they retain should be knowledgeable specifically with DWI cases.

Generally, if you are charged with Driving While Intoxicated and have no prior criminal history; there was no accident; no injuries; no property damage and there are no allegations that you were driving in an overly reckless or unreasonable manner, be very careful if your attorney recommends you plead guilty to the top charge with probation – be even more careful if your attorney makes such a recommendation very early in the case.

Continue reading "GUILTY PLEA IN NEW YORK DRIVING WHILE INTOXICATE CASE VACATED BECAUSE DEFENDANT’S ATTORNEY DID NOT PROVIDE MEANINGFUL REPRESENTATION" »

In New York there are two different Driving While Intoxicated charges. Driving While Intoxicated under VTL 1192(3) is based upon the officer’s opinion that a motorist is intoxicated. This charge is independent of one’s Blood Alcohol Concentration (BAC) and is referred to as common law DWI. The other Driving While Intoxicated charge in New York is based solely upon one’s BAC being at or above .08 as determined by a chemical test such as a breathalyzer type test and is found at VTL 1192(2). This charge is independent of a motorists level of intoxication. That is to say if a motorist is able to handle the vehicle flawlessly they are still guilty of DWI by virtue of their blood alcohol level.
When one is charged under VTL 1192(2) based upon a BAC of .08 or above, the allegation of a BAC of .08 or above must be supported by non-hearsay evidence. What is called the accusatory instrument will be deemed insufficient if the allegation regarding the .08 BAC is not supported by non-hearsay evidence. In other words, it is insufficient for one officer to allege that the defendant’s BAC was .08 unless that officer administered the test or witnessed the test.
For example, in People v Bonner (Lisa), 31 Misc. 3d 142A (App. Term 2nd Dept. 2011), the Court found the Information (accusatory instrument) insufficient where Officer
Montemurro alleged that defendant’s breath test result revealed a .16% BAC but he did not state that he had administered the test, or observed the test being conducted. Furthermore, the Intoxilyzer 5000 printout card which had allegedly been annexed to the information for the breathalyzer test result included the signature of another officer who had conducted the breathalyzer test. Further, the printout that was signed by another officer did not attest to any personal knowledge nor was it properly verified.
Accordingly, the Court found that the lower court should have granted defendant’s motion to dismiss because “[t]he information did not set forth nonhearsay allegations which, if true, established every element, and defendant's commission thereof, of the offense charged.” Id.

Continue reading "Driving While Intoxicated Per Se In Violation of VTL 1192(2): Sufficiency of Information: Information Must Contain First-Hand, Non-Hearsay Evidence Regarding Breath Test Result" »

In New York there are two different Driving While Intoxicated charges. Driving While Intoxicated under VTL 1192(3) is based upon the officer’s opinion that a motorist is intoxicated. This charge has nothing to do with one’s Blood Alcohol Concentration (BAC) and is referred to as common law DWI. The other Driving While Intoxicated charge in New York is based solely upon one’s BAC being at or above .08 as determined by a chemical test such as a breathalyzer type test and is found at VTL 1192(2).
When one is charged under VTL 1192(2) based upon a BAC of .08 or above, the allegation of a BAC of .08 or above must be supported by non-hearsay evidence. What is called the accusatory instrument will be deemed insufficient if the allegation regarding the .08 BAC is not supported by non-hearsay evidence. In other words, it is insufficient for one officer to allege that the defendant’s BAC was .08 unless that officer administered the test or witnessed the test.
For example, in People v Bonner (Lisa), 31 Misc. 3d 142A (App. Term 2nd Dept. 2011), the Court found the Information (accusatory instrument) insufficient where Officer
Montemurro alleged that defendant’s breath test result revealed a .16% BAC but he did not state that he had administered the test, or observed the test being conducted. Furthermore, the Intoxilyzer 5000 printout card which had allegedly been annexed to the information for the breathalyzer test result included the signature of another officer who had conducted the breathalyzer test. Further, the printout that was signed by another officer did not attest to any personal knowledge nor was it properly verified.
Accordingly, the Court found that the lower court should have granted defendant’s motion to dismiss because “[t]he information did not set forth nonhearsay allegations which, if true, established every element, and defendant's commission thereof, of the offense charged.” Id.

Continue reading "Driving While Intoxicated Per Se In Violation of VTL 1192(2): Sufficiency of Information: Information Must Contain First-Hand, Non-Hearsay Evidence Regarding Breath Test Result" »

Capping an unbelievable three weeks, New York Criminal Defense Firm, Tilem & Campbell plea bargained three cases with truly remarkable results. While, Tilem & Campbell has successfully gone to trial and won many criminal cases, it does not always take a trial to get a successful outcome in a criminal case. With experience and expertise the lawyers at Tilem & Campbell are often able to negotiate truly spectacular deals for their clients. Having two former prosecutors obviously helps.

In the first case resolved in late June, our client was charged with shooting at an individual with an illegal handgun. The client was charged with felony Reckless Endangerment and Criminal Possession of a Weapon in the Second Degree, both felonies. On the Weapons charge the client faced a prison sentence of 15 years in prison with a mandatory minimum of 3 ½ years in prison. On the Reckless Endangerment in the first degree charge the client faced up to 7 years in prison. After months of litigation and negotiation, the client pled guilty at the end of June to a class “B” misdemeanor with no jail, no probation and only a conditional discharge. The “B” misdemeanor the client pled guilty to was an Attempt to Commit the Crime of Criminal Possession of a Weapon in the Fourth Degree.

In the second case resolved just two days ago, the client was charged with the felony of possessing 4 illegal guns in Rennselaer County, New York. In New York, possession of 3 or more illegal guns elevates the crime to a class “D” felony, punishable by up to 7 years in prison. The firm was able to negotiate a plea bargain for this client in which he pled guilty to a “B” misdemeanor and again received no jail, no fine, no probation but just a conditional discharge. In addition, the Judge signed a “Certificate of Relief From Civil Disabilities” which is a certificate that relieves the holder of all bars to employment that may be imposed by law as a result of a criminal conviction.

Yesterday, in the third case, it was our client’s second DWI and he refused to take the breathalyzer test. In addition to the DWI tickets he was issued a total of 42 points in tickets for traffic offenses including Reckless Driving, Speeding, Going the Wrong Way on a One Way Street, Passing a Red Light and many more. In addition to the revocation for a conviction for DWI and the Refusal, the client faced a loss of his driving privileges for having more than 10 points and the Driver Responsibility Assessment for 42 points is $3000 plus fines and surcharges. Yesterday he pled guilty to Driving While Ability Impaired by alcohol which is a traffic infraction not a crime like Driving While Intoxicated. All the other moving violations were dismissed and he pled guilty to one 2 point ticket. That’s right 42 points were reduced to only 2 points. The fines and surcharges which could have been thousands of dollars only totaled $745.

While each case is different and results may vary from County to County, Court to Court and based upon the very specific facts of each individual case. These results demonstrate that great legal representation can help you achieve an exceptional outcome in your criminal case.

The lawyers at the New York criminal defense firm Tilem & Campbell are taking notice of a law signed by Governor Jan Brewer on April 29, 2011 eliminates the right to a jury trial for first offenders charged with DWI's and is viewed as a first step toward eliminating the fundamental right to a jury trial in all misdemeanors in the state. The move is expected to save the Court system money but so would the elimination of many of our fundamental rights.

The Sixth Amendment to the United States Constitution found in our Bill of Rights says "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State. . ." What appears to be a very clear constitutional right is not followed in all states.

In New York City for example a person can be tried without a jury, by a judge sitting alone, and sentenced to up to 6 months in jail if the crime they are accused of is a misdemeanor punishable by no more than 6 months in jail. Many prosecutors in New York will reduce a charge in order to take away ones right to a jury trial.

In New York, you are entitled to a jury trial on any DWI since you can be sentenced to up to one year in the jail upon conviction. However, since few people are sentenced to jail on DWI, especially a first arrest the New York State legislature can easily reduce the maximum sentence to six months so that a person accused of DWI in New York City loses his right to a jury trial. There is no right anywhere in New York State to a jury trial for those convicted of DWAI since DWAI is a traffic infraction, not a crime and punishable by only 90 days in jail.

The right to a jury trial is a valuable right and should not be taken for granted. We should all be vigilant that this apparent assault on our fundamental rights doesn't spread further. Already there is a movement in Arizona to repeal this new law.

If you have any questions about DWI's or your right to a jury trial please contact our office.

Bronx ADA Jennifer Troiano who was arrested in August for DWI apparently had two prior driving incidents, one of them involving DWI according to an article published in the Daily News this week. The first incident in 2005 led to the suspension of NYPD Detective Jose Arroyo who was allegedly asleep in the passenger seat when Troiano was involved in some kind of accident and left a bumper and license plate at the scene. In 2009, Troiano was allegedly arrested for DWI but the arrested was voided because she was a prosecutor according to the Daily News Article.

Jose Arroyo was later convicted of Rape and is currently serving a 15 year prison sentence according to the Daily News Article.

The arrest of Troiano and the uncovering of the voided arrest from 2009 has uncovered a large ticket fixing scandal involving Bronx Police Officers. More than 40 police officers are expected to be indicted by a Bronx County Grand Jury according to the Daily News. This could affect hundreds of cases in which indicted police officers made arrests.

Westchester, New York law firm Tilem & Campbell won another DWI trial last week for a man accused of drunk driving back in January 2007. The not guilty verdict came following a two day trial in which police testified that the driver was found asleep in his vehicle, with the engine running while intoxicated. Tilem & Campbell managing partner John Campbell tried the case and focused the defense on the failure to prove operation of the vehicle which is a requirement of any conviction for DWI under VTL 1192 (2) or 1192 (3).

The victory marks Mr. Campbell's seventh not-guilty verdict in a DWI case against just one loss in the last eighteen months. Mr. Campbell has trained extensively in field sobriety testing and DUI detection and has used his training and experience to win DWI cases.

The trial was conducted in the Justice Court of Greenburgh in Greenburgh, New York. The defendant in the case had been facing serious consequences if convicted including revocation of his driving privileges, up to a year in jail, surcharges, fines and insurance consequences, as well as the expensive, New York Driver Responsibility Assessment.

For more information contact Tilem & Campbell.

In New York, no person shall operate a motor vehicle while their ability to operate such motor vehicle is impaired by the consumption of alcohol. [VTL 1192(1)]. Unlike Driving While Intoxicated [VTL 1192(2), (3)], Driving While Ability Impaired (DWAI) in New York is not a criminal offense but instead is a non-criminal traffic infraction. (Please see our May 27, 2009 blog on the difference between DWAI and DWI in New York.) However, Driving While Ability Impaired can be charged as a misdemeanor if the defendant has two or more convictions for Driving While Ability Impaired, Driving While Intoxicated, Aggravated Driving While Intoxicated, Driving While Ability Impaired by Drugs or Driving While Ability Impaired by the Combined Influence of Drugs or of Alcohol and any Drug or Drugs within the previous ten years.

One who is “impaired” by alcohol is less “impaired” than one who is intoxicated. Said another way, intoxication is a greater degree of impairment. All the prosecution need prove to convict a defendant of Driving While Ability Impaired is that the defendant’s consumption of alcohol has actually impaired, to any extent, the physical and mental abilities the defendant is expected to possess in order to operate a vehicle as a reasonable and prudent driver. [See CJI2d (1192(1)].

What makes it difficult for a defendant to defend against a Driving While Intoxicated charge is the “impaired, to any extent”, language found in the jury instruction. For one to be found guilty of Driving While Intoxicated (which is a criminal offense), their ability to operate a motor vehicle must be impaired to a “substantial” extent. However, with Driving While Ability Impaired, one is guilty if their ability to operate the vehicle is impaired to “any” extent. So while it’s generally not a criminal charge, it doesn’t take much proof for the prosecution to prove that one was Driving While Ability Impaired [VTL 1192(1)] because of the low threshold “any” extent proof requirement. Therefore, even the slightest of impairment can result in a conviction for Driving While Ability Impaired.

For more information about any Driving While Ability Impaired or Intoxicated issues in New York, feel free to call Tilem & Campbell toll free at 1-888-DWI-COUNSEL (888-394-2686) or visit us on the web at www.888dwicounsel.com.

Under New York’s tough new Ignition Interlock Device Program, those convicted of Driving While Intoxicated per se under VTL 1192(2); Common Law Driving While Intoxicated under VTL 1192(3); Aggravated Driving While Intoxicated under VTL 1192(2-a) or any crime found in the Vehicle and Traffic Law or the Penal Law of which an alcohol-related violation of any provision of VTL 1192 (New York’s DWI laws) is an essential element will be required to install an IID in any vehicle they own or operate for at least six months.

However, the law does not apply to those convicted of Driving While Ability Impaired (Alcohol) [VTL 1192(1)]; Driving While Ability Impaired by Drugs [VTL 1192(4)]; Driving While Ability Impaired by the Combined Influence of Drugs or of Alcohol And Any Drug or Drugs [VTL 1194(4-a)]; Commercial Motor Vehicles: per se - level I (.04-.06 while operating a commercial vehicle) [VTL 1192(5)]; and Commercial Motor Vehicles; per se - level II (more than .06 but less than .08 while operating a commercial vehicle) [VTL 1192(6)].

Perhaps an argument could be made that the IID law applies to Driving While Ability Impaired by the Combined Influence of Drugs or of Alcohol And Any Drug or Drugs [VTL 1194(4-a)] because under the second provision of this statute one’s ability to drive must be impaired by the combined influence of alcohol and any drug or drugs. Therefore, impaired by alcohol is an essential element of the second provision of VTL 1194(4-a).

While the IID law does not apply to Driving While Ability Impaired (alcohol) [VTL 1192(1)], it does apply to any crime found in the VTL or Penal Law if an essential element of that crime is a violation of any provision of VTL 1192 including Driving While Ability Impaired under VTL 1192(1). And it does appear that Driving While Ability Impaired (alcohol) under VTL 1192(1) is an essential element of VTL 1194(4-a) where the charge is based upon impairment by the combined influence of alcohol and any drug or drugs. We will have to await court rulings or legislative action on this issue.

For more information about any Driving While Intoxicated or Impaired issue please contact Tilem & Campbell toll free at 1-888-DWI-COUNSEL (888-394-2686) or visit us on the web at www.888dwicounsel.com.

New York DWI lawyers are now forced to counsel their clients on the new penalties attached to DWI convictions in New York. On November 18, 2009, New York enacted the Ignition Interlock Device Program. Pursuant to this law, effective August 15, 2010, one who was arrested in New York on or after November 18, 2009 and convicted on or after August 15, 2010 for (1) Driving While Intoxicated per se (VTL 1192(2); (2) Common Law Driving While Intoxicated (VTL 1192(3)); (3) Aggravated Driving While Intoxicated (1192(2-a)); or (4) any crime found in the Vehicle and Traffic Law or the Penal Law of which an alcohol-related violation of any provision of VTL 1192 (New York’s DWI laws) is an essential element will be required to have installed an ignition interlock device in any vehicle he or she owns or operates for a period of at least six months.
This ignition interlock device must be installed even if the court imposes a conditional discharge. (See VTL 1193(1)(b)(ii); VTL 1193(1)(c)(iii); VTL 1198; and PL 65.10(2)(k-1)). To clarify: the IID law does not apply to those arrested before November 18, 2009 even if they are sentenced after August 15, 2010.
This can prove to be quite an onerous condition. For example, a married father with two children of driving age might very well own or operate four cars. If he were to be convicted of an offense that mandates the installation of an IID, he would have to install an IID in all four cars at his own cost. Initial installation and monitoring costs will be discussed in a future blog but generally, initial installation will cost from $80.00 to $225.00 for each car and monthly monitoring will cost as much as $90.00 per month per car. In this example therefore, the defendant could spend as much as $900.00 for installation in the four cars and $360.00 per month for monitoring of the four units for a minimum of six months. The costs can run into the thousands.
For more information about New York’s Ignition Interlock Device Program or other Driving While Intoxicated issues, please contact Tilem & Campbell toll free at 1-888-DWI-COUNSEL (888-394-2686) or visit us on the web at www.888DWICOUNSEL.com

The second episode of "Law Talk with Peter Tilem and John Campbell" aired last night and was a great success. The topics last night included prosecutorial and judicial misconduct, the role of the prosecutor and a little bit more about DWAI (Driving While Ability Impaired by Alcohol) in New York. For those who missed the show it is available on demand at the Centanni Broadcasting Network website. Just click on the date to hear the October 20, 2010 show.

Law Talk with Peter Tilem and John Campbell airs every Wednesday night at 8pm. You can listen live or on demand and if you have a specific topic that you would like us to discuss please E-Mail us the question at info@tilemandcampbell.com.

New York Criminal Defense lawyers Peter H. Tilem and John Campbell completed their first radio show broadcast live over internet radio earlier this evening on the Centanni Broadcasting Network. The topic of the show was the severe penalties for DWI and Gun cases in New York. The shows are archived and are available on demand by visiting the Centanni Broadcasting Network website and clicking on the Law Talk with Peter Tilem, Esq. and John Campbell, Esq. button. Or click on the October 13, 2010 show to be brought right there.

Law Talk received rave reviews and is the first in what is expected to be a weekly show, airing every Wednesday Night at 8pm.

Please join us live or E-Mail us any questions that you would like answered on the air to info@tilemandcampbell.com.

In a continuing effort to provide those charged with Driving While Intoxicated in New York with the best possible defense, on September 23, 2010, attorney John Campbell a partner in the criminal defense firm Tilem & Campbell successfully completed the New York State Bar Association’s Continuing Legal Education Class “Representing a DWI Defendant in New York from Arraignment to Disposition.”

The class focused on New York’s new Ignition Interlock Law which requires anyone charged with Driving While Intoxicated (by alcohol only) on or after November 18, 2009 and sentenced after August 15, 2010 to install an Ignition Interlock in any vehicle that person owns or operates. This is a very complex law with many yet to be solved problems and issues.

Furthermore, the class focused on test refusals, the imposition of penalties on out-of-state drivers, multiple offenders, and DWI felonies. There was also a session on Field Sobriety Testing (which included the Horizontal Gaze Nystagmus (the eye test), the Walk-and-Turn Test and the One-Leg-Stand Test). The final session of the class concerned breath testing and the inner workings of the most common machines used by law enforcement.

This class was but one of many Mr. Campbell has taken in an effort to stay on top of the most cutting edge DWI defense issues and to enable him to effectively cross examine law enforcement officers at Driving While Intoxicated trials throughout New York State. In 2009 Mr. Campbell was certified in DUI Detection and Field Sobriety Testing by Blackwater Worldwide. Also in 2009, Mr. Campbell completed the National Association Criminal Defense Lawyers 2009 DUI Defense Three Day Seminar. Mr. Campbell is also certified in Narcotic Field Testing by NIK Public Safety. This arsenal of training has allowed Mr. Campbell to successfully defend those charged with both felony and misdemeanor DWIs at trial. In fact, other attorneys have at times retained Mr. Campbell to assist them in defending their own clients at DWI trials. For more information please call 1-888-DWI-COUNSEL or visit us on the web at www.888dwicounsel.com.

As we have previously reported in our May 7, 2009, January 18, 2010 and July 26, 2010 blogs, the installation of ignition interlock devices will be come mandatory on all Driving While Intoxicated convictions effective tomorrow, August 15, 2010.

These devices are expensive to install, require monthly monitoring and can be embarrassing to explain. DWI's, DUI's and DWAI's are serious offenses that require serious criminal attorneys who know the science and the law behind DWI cases. Besides the mandatory ignition interlock device and the mandatory revocation of your license, offenders face probation or jail and severe fines and surcharges.

As we approach Labor Day, this is a good time to remind people not to drink and drive. If you or a loved one are arrested, charged or questioned about a DWI or other alcohol related incident including Vehicular Assault or Vehicular Manslaughter contact the law firm of Tilem & Campbell.

A new law which takes effect on August 15, 2010, makes the installation of an ignition interlock system mandatory on all convictions in New York for DWI charges. The devices which are required to be installed at the defendant's expense will not permit the car to start if the operator registers a .025 or above of alcohol in their blood. The new law will effect the approximately 25,000 people per yera who are convicted of drinking and driving.

The law first became effective December 18, 2009 as reported in our prior blog and starting in little more than 2 weeks, the aspect of the law requiring ignition interlocks will become mandatory.

The cost of installation of an interlock device is expected to be about $100 and the required monthly monitoring will cost between $70 and $100 dollars per month. The devise will require the motorist to blow into the device to get the vehicle started and require that the driver blow into the device at regular intervals.

The cost and collateral consequences of DWI convictions in New York have increased dramatically over the last several years. Anyone arrested or charged for a DWI, DWAI or Driving While Ability Impaired by Drugs should contact an experienced DWI lawyer to discuss their options, possible defenses and the range of potential consequences.

If you cause serious physical injury to another person in New York while Driving While Intoxicated (VTL 1192(2), (3)) or Driving While Ability Impaired by Drugs (VTL 1192(4)), in addition to DWI charges, you may also face the more serious charge of Vehicular Assault in the Second Degree (Penal Law 120.03(1)). Vehicular Assault in the Second Degree is a Class E Felony for which you could be sentenced for up to four years in state prison.

For a driver to be guilty on Vehicular Assault in the Second Degree, the prosecution must prove not only that the driver was intoxicated by alcohol or impaired by the use of a drug or the combination of alcohol and any drug or drugs, but also that the intoxication and/or impairment was the cause of the serious physical injury to another. Of course, the prosecution must also prove a serious physical injury as well. (Penal Law 120.03(1)).

However, if a driver causes a serious physical injury to another while operating a vehicle while intoxicated or impaired by the use of drugs or the combination of drugs and alcohol, the law creates a rebuttable presumption that that the driver operated the vehicle in a manner that caused the serious physical injury to another. In other words, if you are Driving While Intoxicated or impaired by drugs and someone suffers a serious physical injury it is presumed that the serious physical injury was caused by how you drove the vehicle.

This presumption can be defeated however. For example, if you were sitting at red light intoxicated and your vehicle was rear-ended by another car resulting in serious physical injury to the other driver, it could hardly be argued that your operation of the vehicle while intoxicated (sitting at a red-light) caused the serious physical injury to the driver that drove into the rear of your stopped car.

A Driving While Intoxicated cases are serious. They are complex cases that require attorneys experienced in the law, science and procedures associated with DWI cases. It is in the complexity that skilled DWI attorneys can win. Driving While Intoxicated cases are even more serious where others are seriously injured. You could very well be facing serious felony charges such as Vehicular Assault in the Second Degree. If you are facing serious charges resulting from a DWI in New York you need to invest in a serious criminal defense law firm. For more information contact Tilem & Campbell toll free at 1-888-DWI-COUNSEL or visit us on the web at www.888DwiCounsel.com.

Tilem & Campbell managing partner John Campbell is certified in Driving Under the Influence Detection and Field Sobriety Testing. He has taken the same training many law enforcement officers have. He has also completed the National Association Criminal Defense Lawyers 2009 DUI Defense Seminar. Mr. Campbell is an experienced New York DWI trial attorney having tried both felony and misdemeanor DWI cases.

Peter Tilem is a former prosecutor who is experienced in not only defending DWI cases but with prosecuting them as well. Having been a former prosecutor who prosecuted thousands of cases, including DWI, Mr. Tilem brings a unique perspective to DWI defense. Together, Mr. Campbell and Mr. Tilem provide you with a competent, aggressive, experienced and knowledgeable defense team.

Generally, people charged with crimes fall into two categories: (1) true criminals; or (2) decent people who happen to commit an offense. The large majority of individuals charged with Driving While Intoxicated (VTL 1192(2) and/or VTL 1192(3)) fall into the second category. In other words, generally, those charged with DWI are otherwise law-abiding, gainfully employed decent members of society who happen to commit the crime of Driving While Intoxicated. Unlike most crimes, Driving While Intoxicated affects all socio-economic classes, all neighborhoods, all races, all ethnicities, all religions, all professions and all cross-sections of society.

By consuming just a few alcoholic beverages, otherwise completely law-abiding individuals (doctors, lawyers, accountants, engineers, salesmen, stock brokers, construction workers and yes, even police officers) can find themselves charged criminally with Driving While Intoxicated. A common mistake one unfamiliar with the criminal justice system can make when charged with DWI is retaining an attorney unqualified to defend DWI charges.
Because the vast majority of people charged with DWI are otherwise law-abiding individuals, they typically don’t know a criminal defense attorney. So what do they do when they’re arrested for Driving While Intoxicated? Many times they call their “family” attorney; the attorney who represented them when they bought their home or prepared their wills. This can prove disastrous if their “family” attorney is not competent to defend DWI cases.

Driving While Intoxicated is a serious crime that requires a competent attorney experienced with defending DWI cases. The stakes are too high to simply turn to your family attorney. A criminal conviction can; put your professional licenses at risk; result in jail or state prison; insurance increases; high fines and fees; loss driver’s license; vehicle forfeiture; probation and court ordered alcohol counseling is possible.

To properly defend a DWI case, your attorney must be competent and knowledgeable with the laws and health department regulations pertaining to Driving While Intoxicated. Your DWI lawyer must also be well versed in certain aspects of forensic toxicology, the science and general principles associated with breath testing machines, blood testing and urine testing. Your DWI attorney should also be thoroughly educated in the Standardized Field Sobriety Tests, their administration and scoring.

For more information and a free telephone consultation, feel free to contact Tilem and Campbell toll free at 1-888-DWI-COUNSEL or visit us on the web at www.888DwiCounsel.com.

Tilem & Campbell managing partner John Campbell scored his fourth straight DWI trial victory this week when the Cortlandt Justice Court in Westchester County New York, acquitted his client of all charges which included DWI (VTL 1192(3), Aggravated Unlicensed Operation (VTL 511) and Speeding (VTL 1180). The defendant was facing a year in jail.

While the arresting officer testified to signs of the defendant’s intoxication, Mr. Campbell focused the defense on signs of the defendant’s sobriety and the defendant’s flawless operation of his vehicle. For example, on cross-examination, the arresting officer admitted that he followed the defendant for several miles and that there was nothing about how the defendant drove the vehicle that indicated he was intoxicated; that the defendant maintained his lane at all times; that he did not hit anything or drive erratically; that he safely pulled his vehicle to the shoulder and came to a safe stop. The officer also admitted that the defendant complied with all orders, produced his license, registration and insurance card without any problems and that he exited his vehicle with no problems. The only traffic violation the officer claimed to have observed was speeding.

The Court found that there was reasonable doubt as to whether the defendant was actually intoxicated. Further, the Court found that the defendant had no knowledge that his license was suspended. Finally, the Court found the defendant not guilty of the speeding charge because the arresting officer could not recall if there was a posted speed limit sign at the time he stopped the defendant.

If you have been charged with Driving While Intoxicated in New York, please contact Tilem & Campbell toll free at 1-888-DWI-COUNSEL or visit them on the web at www.888DWICOUNSEL.COM.

Effective Dec 18, 2009, New York became the latest state to require the installation of an ignition interlock device for anyone convicted of a misdemeanor DWI in New York. The requirement applies to convictions in New York for Driving While Intoxicated or Driving While Impaired by Drugs and Alcohol. The legislation was first reported http://www.newyorkcriminalattorneyblog.com/2009/05/new_york_may_soon_require_igni_1.html last May and is now effective.

The motorist will bear the cost of the installation and rental of the interlock device. Rental can cost about $50per month. Installation can run up to $200 or more depending on the model of the interlock unit and the type or car you drive. Besides the cost, motorists must keep in mind the embarrassment factor. The motorist will not only be required to blow into the device to start the car but also at random times while driving. The unit will be obvious to anyone in the car.

Anyone charged with a DWI or a related offense in New York should speak to an experienced criminal lawyer who specifically handles Driving While Intoxicated cases. The consequences of a DWI conviction in New York have become increasingly harsh with the possibility of jail, huge fines and surcharges, insurance consequences, the possibility of probation, loss of driving privileges and now the requirement of the ignition interlock system.

Westchester DWI defense firm, Tilem & Campbell won another DWI trial last week when Mount Pleasant Judge Nicholas Masselli issued a decision finding that the client who was pulled over on the side of the highway was not "operating" the vehicle and therefore could not be convicted of Driving While Intoxicated. Judge Masselli also dismissed another charge of Parking on the Pavement and issued an order sealing the record.

The case arose after the client was found sleeping behind the wheel of a running vehicle that was sitting on the side of the road by a New York State Trooper. The Trooper testified that he smelled the strong odor of an alcoholic beverage on the driver's breath and that the driver failed a horizontal gaze nystagmus test that was performed on the side of the road. The Trooper testified that the driver failed other field sobriety tests and refused a breath test that he was offered at the police station.

Managing partner John Campbell tried the case on behalf of the firm and this victory makes three DWI wins in a row for Mr. Campbell. The defense focused on the troopers errors in administering and scoring the field sobriety tests and the lack of the intent to operate the vehicle.

Tilem & Campbell is a White Plains based criminal defense firm that has an extensive DWI and traffic practice. For more information contact Tilem & Campbell.

Previously I discussed New York Court of Appeal’s cases which held that the police do not have to read a DWI suspect his or her rights before requesting that they perform Field Sobriety Tests because such tests are not testimonial or communicative. People v. Hager, 69 N.Y.2d 141, 512 N.Y.S.2d 794 (1987); People v. Berg, 92 N.Y.2d 701, 685 N.Y.S.2d 906 (1999).
But where the officer requests the suspect to recite the alphabet or perform a finger count test, those responses are verbal and therefore, at the very least communicative. However, the Third Department has held that an officer need not read a suspect his or her Miranda Warnings prior to requesting that the suspect recite the alphabet or perform the finger count test because such tests are not communicative or testimonial in that they don’t reveal the person's subjective knowledge or thought processes. People v. Hasenflue, 252 A.D.2d 829, 675 N.Y.S.2d 464 (3rd Dept. 1998). The Court of Appeals has reached the same conclusion regarding the alphabet and finger count tests. People v. Berg, 92 N.Y.2d 701, 685 N.Y.S.2d 906 (1999)(these tests are not testimonial or communicative in that they do not require a person to reveal knowledge of facts relating to the offense).
For information regarding Driving While Intoxicated in New York or to schedule a free consultation, please call Tilem & Campbell toll free at 1-888-DWI-COUNSEL or visit us on the web at www.888DWICOUNSEL.COM.

Many times those charged with a New York Driving While Intoxicated charge will complain that they never were read their rights. When one must be read their “rights” is beyond the scope of this blog. However, for purposes of Field Sobriety Tests, the issue addressed in this blog is whether one must be read their “rights”, or what are commonly known as “Miranda Warnings”, prior to being asked to perform Field Sobriety Tests.
The answer is no. In People v. Hager, the New York Court of Appeals held that the police do not have to give a DWI suspect his or her Miranda Warnings prior to the administration of Field Sobriety Tests. 69 N.Y.2d 141, 512 N.Y.S.2d 794 (1987). In rendering its decision, the Court noted that the privilege against self incrimination prevents the state from compelling a person to provide testimonial or communicative evidence. In 1999, the Court of Appeals reaffirmed this holding in People v. Berg 92 N.Y.2d 701, 685 N.Y.S.2d 906 (1999) again holding that Miranda warnings are not required to allow Field Sobriety Tests into evidence.
So therefore, the police do not have to inform a motorist of his or her right to refuse to perform Field Sobriety Tests (People v. Sheridan, 192 A.D.2d 1057, 596 N.Y.S.2d 245 (4th Dept. 1993)) nor do they have to read them their Miranda Warnings prior to requesting they perform the tests.
If you have any questions regarding Driving While Intoxicated or if you have been charged with DWI in New York, please call Tilem & Campbell toll free at 1-888-DWI-COUNSEL or visit us on the web at www.888DWICOUNSEL.com.

New York criminal law firm Tilem & Campbell would like to take a moment to thank our clients, blog readers and friends for a great year and wish everyone a very healthy and happy holiday season.

During this season a couple of things bear repeating.

Drinking and Driving is a serious and dangerous crime. Don't drink and drive.

Be careful driving. The police are out in force during the holidays, don't speed, obey all traffic signs and stay alert. Texting while driving is now illegal in New York. Don't talk on your cell phone without a hands free device or text while driving. Remember New York traffic tickets can be more costly than you realize.

Be safe and happy holidays.

John Campbell & Peter Tilem

Field Sobriety Tests (FSTs) are designed to test one’s physical abilities and well as their ability to divide their attention between multiple tasks or instructions. They are utilized by officers in making a decision to arrest a motorist for Driving While Intoxicated. In order to arrest a motorist for DWI, New York law requires that the police officer have probable cause to believe that the motorist had been driving in an intoxicated condition. FSTs are designed to aid the police officer in deciding whether he has probable cause to believe that the person is intoxicated. Most of us have seen the “walk and turn” test, the “one-leg-stand” test or the horizontal gaze nystagmus test (the “follow my finger” test) on videos, in the movies or if you have been suspected of driving while intoxicated and have been asked to perform them by the officer.
The question many ask is, “must I perform these tests?” It’s a very legitimate question. Should one attempt the Walk-and-Turn and One-Leg-Stand tests on the side of highway with cars passing at 55 mph in the middle of the night? Keep in mind; these tests are difficult for sober people to successfully perform. (That’s why judges will almost never allow a defense request that the officer show the court exactly how that officer demonstrated the test for the motorist – as the officer is required to do).
A motorist does have the right to refuse to perform Field Sobriety Tests however; the police have no obligation to inform the motorist of his or her right to refuse to perform the tests. People v. Sheridan, 192 A.D.2d 1057, 596 N.Y.S.2d 245 (4th Dept. 1993); see also People v. Capraella, 165 Misc.2d 639, 629 N.Y.S.2d 965 (N.Y.City Crim.Ct.,1995)(holding that the police have no obligation to inform motorist that they can refuse to perform field sobriety tests). However, one’s refusal to perform field sobriety tests is admissible at trial. People v. Berg
92 N.Y.2d 701, 685 N.Y.S.2d 906 (1999).
If you have been charged with Driving While Intoxicated in New York City, Westchester, Dutchess, Putnam or Rockland counties contact Tilem & Campbell toll free at 1-888-DWI-COUNSEL or visit us on the web at www.tilemandcampbell.com.

New York criminal defense law firm Tilem & Campbell will launch a holiday season ad campaign directed toward those caught Driving While Intoxicated or violating other New York traffic laws. The campaign will advertise the Doctor Summons trade name which will ask potential clients to contact Tilem & Campbell through its 877-DR-SUMMONS toll free number and through its DRSUMMONS.COM website. The ad campaign coincides with the holiday season, during which the firm sees an increase in DWI, Aggravated Unlicensed Operation of a Vehicle, Speeding and other moving violations.

The ad campaign is designed to let motorists know that they can fight these types of charges and that in many cases they can fight traffic violations without the necessity of going to Court.

The Dr Summons name has been used by law firm Tilem & Campbell, for several years to give motorists an easy to remember toll free number and website in case they find themselves charged with a traffic violation or DWI. Tilem & Campbell has successfully handled thousands of traffic violation in New York State.

New York criminal defense firm Tilem & Campbell scored another major victory in a DWI case today when Supreme Court Justice William Wetzel found the defendant not guilty of felony DWI after trial. The defendant was found not guilty of the felony but was found guilty of unlawful possession of marihuana, a non-criminal offense that carries a maximum penalty of a $100 fine. The defendant was facing up to four years in prison on the felony charge.

The charge arose based upon a one car accident in Yonkers. The defendant refused to take a chemical test but his driving privileges were quickly restored after Tilem & Campbell, partner Peter Tilem won at the DMV refusal hearing.

The defendant had been charged with one count of Driving While Ability Impaired by Drugs or Alcohol and Drugs under Vehicle & Traffic Law section 1192 (4-a), a relatively new section of the New York Vehicle and Traffic Law.

Managing Partner John Campbell conducted the trial. Mr. Campbell focused the defense on the failure of the police to properly administer the field sobriety tests as well as the lack of evidence of the defendant's operation of the vehicle.

Tilem & Campbell is a White Plains, New York based criminal defense firm that handles a wide array of criminal cases including DWI, Assault, Drugs, Guns and homicides. For more information contact Tilem & Campbell.

John Campbell, managing partner of White Plains law firm Tilem & Campbell, has successfully completed a three day class in Driving Under the Influence/Driving While Intoxicated defense sponsored by the National Association of Criminal Defense Lawyers and the National College for DUI Defense.

The class, held at Caesars Palace Hotel in Las Vegas from October 8th through October 11th, focused on, among other things, Field Sobriety Testing (Walk and Turn, One Leg Stand and the Horizontal Gaze Nystagmus), the various Breathalyzer machines and their shortcomings, cross-examination of the arresting officer as well as the Breath Test Operator, issues involving blood and urine testing, cross-examination of the state’s toxicologist, recent decisions concerning DWI defense and public speaking issues involving jury presentation. The classes were taught by leading DWI and DUI attorneys from across the nation; many of whom are Board Certified in DUI Defense by the National College for DUI Defense.

Additionally, Mr. Campbell is certified by Blackwater Worldwide in Driving Under the Influence Detection. Blackwater’s certification required Mr. Campbell to complete and 8 hour class in DUI detection and pass a proficiency exam. He is also certified by NIK Public Safety in Narcotic Field Testing having taken a two hour class offered by NIK as well as passing a proficiency exam.

Those charged with Driving While Intoxicated need attorneys that know not just the law, but the science and procedures related to Driving While Intoxicated. Tilem and Campbell can provide just such attorneys. For more information call 1-888-DWI-COUNSEL or visit www.888DWICOUNSEL.COM.

New York DWI defense firm Tilem & Campbell has recently launched an ad campaign targeting individuals accused of Driving While Intoxicated (DWI) and/or related charges. The campaign, which involves, print, radio and internet media uses the toll free number 888-DWI-COUNSEL which corresponds to the numbers (888) 394-2686. The campaign also utilizes the domain address www.888dwicounsel.com. The toll free vanity number and domain should help the public locate Tilem & Campbell. DWI-COUNSEL is spelled with the SEL at the end and not COUNCIL with the CIL at the end to indicate that the firm counsels those accused of DWI.

The lawyers at Tilem & Campbell have a wealth of experience and knowledge in DWI and related cases and can assist those accused. Two lawyers at Tilem & Campbell are former prosecutors, in addition a third has recently completed courses in Driving Under the Influence Detection and Narcotics Field Testing.

Anyone who has been accused in New York of Driving While Intoxicated, Driving While Ability Impaired by Alcohol, Driving While Ability Impaired by Drugs or any related charges is encouraged to call 888-DWI-COUNSEL for a free consultation either in person or over the telephone.

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.

In continuing with my series of blogs on Driving While Intoxicated and blood testing, this blog will focus on the problem of fermentation within the blood sample collection tube. I previously explained that the collection tube is supposed to contain two chemicals – an anticoagulant and an anti-fermentation chemical. Preventing fermentation in collection tube is critical because if the sugar in the blood ferments into alcohol, that will obviously result in an erroneously high blood alcohol concentration result.

The collection tubes are therefore required to contain a preservative to prevent fermentation. Sodium fluoride is the most common preservative used and is the preservative used by NIK Public Safety, Inc. who manufactures the blood collection kits most commonly used by law enforcement agencies. NIK makes two kits; one contains 20mg of sodium fluoride and the other contains 100mg of sodium fluoride.

Inquiry should be made into whether the kit contained 20mg or 100mg of sodium fluoride because 100mg is required to prevent fermentation. There are problems with both. First, studies have shown that 20mg is insufficient to prevent fermentation and second, 100mg can cause an erroneously high result when “Head Space Analysis” testing is used (discussed later).

If you have been arrested for Driving While Intoxicated and would like a free telephone consultation with attorneys who know not just the law, but the science and procedures involved with DWI cases, contact Tilem & Campbell toll free at 1-877-377-8666.

As discussed in a prior blog, when you are charged in New York with Driving While Intoxicated or Driving While Ability Impaired, the most common method used by police to determine your blood alcohol concentration is a Breathalyzer type machine. However, the police may, and sometimes do, request a blood sample instead. I have already discussed who may perform the draw, the sanitizing of the skin and the need for the collections tubes to contain anticoagulant and anti-fermentation chemicals. Assuming the draw was done by an authorized person, the skin was properly sanitized with a non-alcoholic swab and the prosecution somehow was able to establish the collection tube contained the necessary anticoagulant and anti-fermentation chemicals, the next area of attack for New York defense counsel is whether said chemicals were properly mixed with the blood after the draw.

The mixing of the chemicals and the blood is critical. The instructions that come with the kit manufactured by NIK Public Safety Inc (the kit most commonly used by law enforcement agencies) instruct the blood drawer to slowly invert the collection tubes at least five times after blood collection is complete to assure the proper mixing of the anticoagulant and the blood. The kit also instructs that the officer who requested the blood test invert the collection tubes slowly at least 20 times immediately after the blood is drawn.

This requirement should be explored by defense counsel. Many times hospital personnel are not familiar with this requirement because they don’t normally do it when they take blood. Furthermore, I have seen police officers testify that they didn’t even know about this requirement. If the collection tubes are not properly inverted after collection, the chemicals will not properly mix with the blood. Just imagine a cup of coffee with sugar at the bottom. The coffee will not taste sweet unless the coffee is stirred or agitated to mix the sugar. If there is no testimony about the proper inverting of the tubes after the blood draw, you should move to have the blood test result suppressed. If it is not suppressed, your attorney should ask the toxicologist whether the failure to properly mix the chemical affects the integrity of the sample.

For more information about Driving While Intoxicated in New York contact us to discuss your specific situation.

If you have been charged with a New York Driving While Intoxicated charge or any other related charge such as Vehicular Manslaughter, you need criminal defense attorneys who not only know the laws relevant to DWI, but also the science and procedures involved with such charges. You need lawyers who can competently question the prosecution’s witnesses including their experts

If you are arrested for Driving While Intoxicated in New York and instead of the more typical Breathalyzer test being requested of you, the officer requests a blood sample, that blood sample is not immediately tested. In a typical Breathalyzer case, your breath sample is immediately tested by the machine. However, with a blood draw case, the blood sample is typically sent to a lab for testing. This procedure can take days and even weeks to complete. Two issues therefore, become a problem: (1) clotting; and (2) fermentation. I will discuss clotting in this blog.

We all know that blood exposed to the air will clot after a while. If parts of a blood sample start to clot, the alcohol will concentrate in the remaining liquid portion and it is the liquid portion that is tested. This will result in an erroneously high test result. In order to prevent clotting, the collection container or tube must contain an anticoagulant. [See 10 NYCRR § 59.2(c)(4)].

Whether the sample contains an anticoagulant can be determined through a process called ion chromatography. However, the lab that actually tests the blood almost never tests to see if the sample actually contains an anticoagulant. The question becomes therefore, did the collection container actually contain an anticoagulant and if it did, how much did it contain?

Most likely, none of the prosecution’s witnesses will be able to definitively confirm that the collection tube actually contained an anticoagulant or how much. Unless they conduct testing (or at the very least random testing a some of the collection kits the particular law enforcement agency purchased), the most any prosecution witness could testify to is what the labeling or literature accompanying the collection kit stated with regard to an anticoagulant and that would be hearsay.

In People v. Peck, 16 Misc.3d 126(A), 841 N.Y.S.2d 827 (App. Term 2nd Dept. 2007), the Appellate Term for the Second Department held that the defendant’s blood test results were improperly admitted because the People failed to establish that the collection containers contained the required anticoagulant chemical. In a 2004 case, that same court (Appellate Term for the Second Department) had reached the same conclusion holding that the defendant’s blood test result was improperly admitted at trial because their was no evidence that the collection tubes contained to required chemicals and the required amounts. See People v. Barker, 5 Misc.3d 137(A), 799 N.Y.S.2d 162 (Table)(App. Term 2nd Dept. 2004).

Therefore, defense counsel should ask each prosecution witness involved with the blood draw if they have any FIRST HAND knowledge about what chemicals were contained in the collection tube. If none do, defense counsel should object to the introduction of the blood test result. And without a test, how could any prosecution witness know for sure what was in the collection tubes.

. For a free telephone consultation, please call Tilem & Campbell toll free at 1-877-377-8666 or send us an email to info@tilemandcampbell.com.

If you have been charged with Driving While Intoxicated in New York you need criminal attorneys who know not just the law, but the science and procedures relevant to a DWI case.In continuing with my series of blogs concerning blood testing in New York Driving While Intoxicated cases, I will now discuss the “swabbing” or sterilization of the skin prior to the drawing of the blood. Recall, my prior blogs discussed who may actually draw the blood. After who actually did the draw is attacked by defense counsel, the next area of attack is the “swabbing” or sterilization process.
New York State Department of Health Rules and Regulations require that a non-alcoholic antiseptic be used. [See 10 NYCRR § 59.2(c)(3)]. Clearly, alcohol used to clean the draw site could find its way into the sample. In People v. Ward, 14 Misc.2d 518, 178 N.Y.S.2d 708 (N.Y.Co.Ct. 1958), the Westchester County Court held that it was reversible error to admit blood alcohol evidence where the defendant’s arm was cleansed with alcohol prior to the blood draw. In Ward, a chemist testified that it was possible that alcohol used to cleanse the draw site could have entered the blood sample.
Likewise, in People v. Maxwell, 18 Misc.2d 1004, 188 N.Y.S.2d 692 (N.Y.Co.Ct. 1959), the Orange County Court held that the blood test result was inadmissible because the defendant’s arm was sterilized with alcohol prior to the blood draw. See also People v. Douglas, 16 Misc.2d 181, 183 N.Y.S.2d 945 (N.Y.Co.Ct. 1959) where the Jefferson County Court reversed DWI conviction where doctor testified that the skin was swabbed with alcohol prior to the blood draw and the toxicologist testified that a small amount of alcohol could enter the sample thus effecting the result.
The most commonly used blood test kit used by law enforcement is sold by NIK Public Safety. It contains, among other things, one non-alcoholic antiseptic swab. The instructions contained within that kit instruct the person drawing the blood to use only the Swab Pad provided in the kit. The instructions further state that the drawer should prepare the draw site using only the non-alcoholic antiseptic pad provided in the kit.
However, it is possible that a nurse or other authorized blood drawer might not use the non-alcoholic swab provided in the kit and simply, out of habit or otherwise, swab the area with the swabs they normally use in the hospital/ambulance etc. This must be explored with the blood drawer on cross-examination. You should try to ascertain from the witness what type of swab the hospital normally uses. If the drawer can’t recall whether they used the proper swab, then point out that it is possible that they used an alcoholic swab. You would then ask the toxicologist what effect this might have on the test result.
For a free consultation please call Tilem & Campbell toll free at 1-877-377-8666.

Senior partner, Peter H. Tilem, appeared on the five o'clock news earlier this evening commenting on the Taconic Parkway fatal collision that left the driver and seven others dead. The piece appeared on channel 7's Eyewitness news shortly after 5 pm. Mr. Tilem, who is a former senior prosecutor in the New York County District Attorney's Office, was asked about the possibility of charges being brought against the husband of the woman who was allegedly intoxicated and indicated that it would not be sufficient if the husband was merely are of a history of substance abuse.

The full video is available and can be viewed at Tilem & Campbell's media page along with other videos of partners Peter Tilem and John Campbell in the news.

If you are charged with DWI, you need criminal defense lawyers that not only know the law, but also know the science and procedures relevant to a Driving While Intoxicated cases. Continuing with my series of blogs pertaining to blood draws in New York Driving While Intoxicated cases, in this blog I will briefly review cases which make clear that when the blood is drawn by specifically listed technicians, phlebotomists and the like, such a blood draw must be under the “supervision and at the direction of a physician”.

In People v. Olmstead, 233 A.D.2d 837, 649 N.Y.S.2d 624 (4th Dept. 1996), blood test results were suppressed where a medical laboratory technician did the draw at the direction of a nurse instead of a physician. Other cases firmly establish that only a physician can direct and supervise those technicians and the like listed in VTL 1194(4)(a)(1)(ii) to perform a blood draw for DWI purposes. The Fourth Department had previously reached the same conclusion in People v. Ebner, 195 A.D.2d 1006, 600 N.Y.S.2d 569 (4th Dept. 1993) where they suppressed the results of a blood test because a registered nurse, instead of a physician, authorized a medical laboratory technician to perform the blood draw.

In People v. Reynolds, 193 Misc.2d 697, 749 N.Y.S.2d 687 (N.Y.Co.Ct. 2002), the Essex County Court suppressed blood test results for non-compliance with the physician supervision requirement holding “[t]he People did not meet their burden of showing that a physician either directed or supervised the taking of a blood sample from Defendant by an AEMT. The blood test results should, therefore, be suppressed.”

Similarly, in People v. Griesbeck, 17 A.D.3d 717, 793 N.Y.S.2d 227 (3rd Dept. 2005), the Third Department upheld the trial court’s reversal of a jury’s guilty verdict because the People “failed to introduce evidence that the medical technologist who drew defendant’s blood was authorized to do so by a physician.”

The Appellate Term for Second Department has reached the same conclusion. In People v. Gertz, 189 Misc.2d 315, 731 N.Y.S.2d 326 (App. Term 2nd Dept. 2001), the Appellate Term held that the People did not establish that a physician directed a medical technologist to draw the defendant’s blood in the emergency room. In rejecting the People’s position, the Appellate Term observed that the technologist merely testified that he received a call to draw blood and that a doctor was on duty in the emergency room.

The above summarized cases establish that the courts strictly construe the supervision and direction of a physician requirement when the blood is drawn by one other than a physician, registered nurse or physician’s assistant.

For more information about Driving While Intoxicated laws in New York, call Westchester Criminal Defense Firm, Tilem & Campbell toll free at 1-877-377-8666.

Last Friday, Tilem & Campbell managing partner, John Campbell scored a major victory on a DWI case in the Town of Ramapo when a jury acquitted the client of all charges in connection with a DWI that police alleged was committed during the Jewish holiday of Purim. The client was charged with DWI and DWAI but was found not guilty on all charges. Although police alleged that the keys were in the ignition of the car and that the engine was running, the client was sleeping in the car and the jury found that the client did not "operate" the vehicle as required for a DWI conviction.

On Monday, the next business day, Tilem & Campbell was back in Ramapo Town Court this time representing a client charged with committing a second DWI just one month after pleading guilty to the reduced charge of Driving While Ability Impaired in connection with the client's first DWI. The client was again offered a plea to the reduced charge of Driving While Ability Impaired (DWAI) and entered a plea to the DWAI with a minimum fine. Other traffic infractions pending against the client were dismissed. This second case was handled by Tilem & Campbell senior partner Peter Tilem.

If you or a loved one has been arrested or charged with a DWI, DWAI or any criminal case in New York contact one of the experienced criminal defense attorneys at the Westchester criminal defense firm of Tilem & Campbell.

As I have previously explained, in a New York Driving While Intoxicated case where a blood test is directed by a police officer, only a physician, a registered nurse or a physician’s assistant my draw the blood unsupervised. [See NY VTL 1194(4)(a)(1)(i)]. Other specifically listed technicians and the like may also perform the blood draw but only under the supervision and direction of a physician. [See NY VTL 1194(4)(a)(1)(ii)].

But what if a registered nurse instead of a physician directs and supervises those specifically listed technicians to do the blood draw? The statute is very clear – only a physician may direct and supervise those listed technicians and the like. In People v. Olmstead, 233 A.D.2d 837, 649 N.Y.S.2d 624 (4th Dept. 1996), the blood draw was done by a medical laboratory technician at the direction of a registered nurse instead of a physician. The Fourth Department suppressed the blood test result observing that “[t]he critical element, deemed essential by the Legislature when it amended the statute in 1969 . . .is that a physician authorize the taking of the sample.”

Amazingly, the trial court in Olmstead had originally declined to suppress the blood test result holding that there was substantial compliance with the statute because the nurse, who could have drawn the blood without the physician's direction, was present and watched the blood being drawn. This substantial compliance exception created by the trial court in Olmstead was rejected by the Fourth Department.

Wouldn’t we all like to avoid the ramifications and sanctions of the law by simply telling a court that we substantially complied with such law? Wouldn’t it be nice to show up in traffic court and tell the judge to throw out your speeding ticket because you substantially complied with the law by exceeding the speed limit by only 10 mph? Or how about courts dismissing DWI cases where the driver blows .09 (just .01 over the limit) because such a small amount over the .08 limit is substantial compliance with the law.

Nevertheless, in the end the rule of law prevailed. If you have been charged with DWI or other Driving While Intoxicated offense, please call Tilem & Campbell toll free at 1-877-377-8666. We cover the entire downstate area including Westchester, Rockland, Dutchess, Orange and Putnam counties as well as New York City (Bronx, Queens, Brooklyn, Manhattan and Staten Island).

As I previously discussed in Part 1 of this group of blogs pertaining to blood testing in NY DWI cases, one of the first areas of attack in a blood test DWI case is the person who drew the blood – the “drawer”. Briefly, at the request of a police officer only a physician, a registered professional nurse or a registered physician's assistant may draw a motorist’s blood for the purpose of determining its alcoholic and/or drug content. [See NY VTL 1194(4)(a)(1)(i)]. For purposes of my blogs, I refer to this as the “first group” of drawers.

And, at the request of a police officer and at the direction and supervision of a physician, a medical laboratory technician or medical technologist as classified by civil service; a phlebotomist; an advanced emergency medical technician as certified by the department of health; or a medical laboratory technician or medical technologist employed by a clinical laboratory approved under title five of article five of the public health law may draw a motorist’s blood for the purpose of determining its alcoholic and/or drug content. [See NY VTL 1194(4)(a)(1)(ii)]. I refer to this group as the “second group” of drawers.

When the blood draw is done by someone in the second group of drawers, what exactly does at the “direction and supervision of a physician” mean? Recall, those in the second group of drawers may only draw at the “direction and supervision of a physician”.
In People v. Moser, 70 N.Y.2d 476, 522 N.Y.S.2d 497, 517 N.E.2d 212 (1987), the Court of Appeals held that the personal presence and supervision by a physician of a technician who drew a blood sample was not required by Vehicle and Traffic Law § 1194. In so holding, the Court of Appeals only required the physicians authorization of the test.

It’s important to note that the physician in Moser testified that he directed and supervised all activities in the emergency room and had authorized the drawing of the blood. In People v. Ellis, 190 Misc.2d 98, 737 N.Y.S.2d 232 (N.Y.Co.Ct. 2001), the Cattaraugus County Court distinguished Moser and held that the People had not established that a physician authorized the blood draw by an Advanced Emergency Medical Technician because the physician who allegedly authorized the test did not testify.

Therefore, while Moser held that the physician who directs and supervisors the blood draw need not actually watch the draw, that physician should testify at trial that he or she directed and supervised all activities in the emergency room (or similar locale) and had authorized the drawing of the blood. Defense counsel should object to the introduction of a blood test result where the draw was done at the direction and under the supervision of a physician if that physician does not testify at trial.

If you have been charged in New York with Driving While Intoxicated or impaired, contact Tilem & Campbell toll free at 1-877-377-8666 for a free telephone consultation.

Anyone who drives in New York is deemed to have consented to the chemical testing of his or her breath, blood, urine, or saliva, to determine the alcoholic and/or drug content of their blood. [See NY VTL 1193(2)(a)].

Typically a New York DWI suspect’s breath is tested and he or she is asked to take a Breathalyzer [or similar type] test. However, a police officer might direct that the driver’s blood be tested instead. In this regard, at the request of a police officer, a physician, a registered professional nurse or a registered physician's assistant may draw a motorist’s blood for the purpose of determining its alcoholic and/or drug content. [See NY VTL 1194(4)(a)(1)(i)]

Or, again, at the request of a police officer and under the supervision and at the direction of a physician, a medical laboratory technician or medical technologist as classified by civil service; a phlebotomist; an advanced emergency medical technician as certified by the department of health; or a medical laboratory technician or medical technologist employed by a clinical laboratory approved under title five of article five of the public health law may draw a motorist’s blood for the purpose of determining its alcoholic and/or drug content. [See NY VTL 1194(4)(a)(1)(ii)].

Therefore, when defending a DWI blood test case, the first thing you want to look at with regard to the blood test itself is whether the blood was drawn by an authorized person and/or under the direction and supervision of an authorized person. In other words, at the request of a police officer, only a physician, a registered professional nurse or a registered physician's assistant may draw a motorist’s blood for the purpose of determining its alcoholic and/or drug content without additional supervision or direction. We will refer to these people as the first group of authorized blood drawers.

The second group of blood drawers authorized to draw blood at the direction of a police officer for alcohol and/or drug testing must do so under the supervision and at the direction of a physician. To review, this second group of blood drawers consists of a medical laboratory technician or medical technologist as classified by civil service; a phlebotomist; an advanced emergency medical technician as certified by the department of health; or a medical laboratory technician or medical technologist employed by a clinical laboratory approved under title five of article five of the public health law.

Again, always check the qualifications or title of the blood drawer and make the People prove it. Was that really a Registered Nurse? Did a doctor direct that the Emergency Medical Technician draw blood and further, did the doctor supervise the draw? Also, was the Emergency Medical Technician an “Advanced” Emergency Medical Technician?

In coming blogs on this topic I will discuss this issue at length and review some sample cases where who did the blood draw was an issue as well as cases regarding whether the blood draw was properly supervised. Meanwhile, if you have been charged in New York with Driving While Intoxicated or any similar offense, call Tilem & Campbell toll free at 1-877-377-8666 for more information.

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.

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.

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.

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.

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.

New York State may be the 11th State in the United States to make ignition interlock devices mandatory vehicles owned by people convicted of drinking and driving (DWI) even if it is their first conviction. The device can detect alcohol in a driver’s breath and prevents the car from starting if alcohol is detected. The proposal made by two Long Island legislators, Senator Charles J. Fuschillo, Jr. and Assemblyman Harvey Weisenberg is already gaining steam in Albany where it has already passed the Senate Transportation Committee. The ignition interlock legislation has passed the Senate before but has not gotten through the New York State Assembly.

While the legislation is popular, its effectiveness is questionable since it only works on the offender’s car and he could obviously drive any car including a rental, a friend’s car or a family member’s car. In addition, anybody could blow into the device thus permitting the intoxicated driver to operate the car.

As experience New York DWI attorneys know, this legislation will add another collateral consequence to a long list of consequences of New York DWI convictions. This list already includes: offenders having a criminal conviction, fines, surcharges, insurance consequences, Driver Responsibility Assessment and license revocation in addition to possibility of jail, probation, conditional discharge, mandatory attendance at a victim impact panel and revocation of offender’s registration.

New York DWI’s are costly and are getting costlier. Everyone needs to be careful. If you or a loved one has been charged with in New York with DWI or DWAI contact the law firm of Tilem & Campbell.

Tilem & Campbell would like to wish our friends, clients, colleagues and loyal readers of this blog a very happy, healthy and successful holiday season and 2009. During this time of year it is important to remind everyone to be careful on the roads. As we celebrate with our families, friends and colleagues, certain things bear repeating:

Do not drink and drive. As discussed in our March 3, 2008 blog, even small amounts of alcohol can result in an arrest and charge for DWI or DWAI.

Refusing to take a breath test can result in the revocation of your driver's license for one year whether or not you are convicted of DWI or DWAI. See our March 17, 2008 blog on refusal to submit to a chemical test in New York.

If you refuse to submit to a chemical test in New York, that fact may be used against you as evidence in your criminal case for DWI or DWAI. See the above March 17 blog.

Do not ignore traffic tickets or traffic fines. Doing so can result in your being charged with Driving with a suspended (or revoked) driver's license in New York (Aggravated Unlicensed Operation) which is crime in New York State. Please see our May 16, 2008 Blog on Driving with a suspended or revoked license.

If you are issued traffic summons or traffic tickets in New York keep in mind that a conviction for most moving violations carry points on your license in addition to the fines. If you receive six points on your license you will be assessed a driver's assessment fee from the New York State Department of Motor Vehicles. This fee will be $100 for six points for three years plus $25 per year for each point over six. In addition, if you receive eleven points your license will be suspended and three speeding convictions in 18 months can result in your license suspension. Do not simply pay tickets indiscriminately. Contact an experienced traffic court attorney. An experienced attorney can often negotiate a substantial reduction of points and/or challenge the tickets.

Do not mix prescription pills (or illicit drugs) and driving. See our November 9, 2008 blog.

With a little commons sense lets all have a safe and healthy holiday season.

In New York, it is illegal for one to operate a motor vehicle while that person’s ability to operate the motor vehicle is impaired by the use of a drug as defined in VTL § 114-a (See VTL § 1194(4) for the exact wording of the statute).

Vehicle and Traffic Law section 114-a defines a drug for purposes of VTL § 1194(4) as any substance listed in New York Public Health Law § 3306. In New York, if you are impaired or intoxicated by alcohol you could be charged with VTL § 1192(1); VTL § 1192(2); and/or VTL § 1192(3) (in other words DWI and/or DWAI); all three of which concern impairment or intoxication by alcohol.

However, in order to be charged with Driving by Ability Impaired By Drugs, you must have ingested a drug specifically mentioned in Public Health Law § 3306 and that drug must have impaired you ability to drive (this is discussed in a future blog). With new and more powerful drugs routinely hitting the “club scene”, it seems somewhat foolish to prohibit one from driving if they are under the influence of a drug listed in Public Health Law § 3306 while allowing them to drive with impunity if they ingest a drug not listed in Public Health Law § 3306. Recall, drugs such as GHB and Ecstasy were legal for years before they were banned. Simply stated, those driving under the influence of drugs not listed in Public Health Law § 3306 do not run afoul of VTL § 1192(4).

The list of drugs found in Public Health Law § 3306 is extremely long to the point that one might not even know if what they are taking, legally or otherwise, is listed in 3306. As I have repeatedly stated, never, never, never talk with law enforcement. For an exact list of the drugs that might subject you to driving while ability impaired by drugs see Public Health Law § 3306. And as always, if you have been charged with any alcohol a drug related driving offense in New York, call Tilem & Campbell for a free, confidential consultation.

New York State law enforcement officials announced this week a new campaign to crack down on Driving While Intoxicated or Impaired on New York State roads. The campaign coincides with the national "Drunk Driving. Over the Limit. Under Arrest,"campaign which is scheduled to last until September 2, 2008. The program calls for police agencies throughout New York State to increase the use of saturation patrols and checkpoints in an effort to catch intoxicated and impaired drivers.

Readers of this Blog and clients of Tilem & Campbell are reminded of my blog dated March 3, 2008 warning drivers about being arrested even if their Blood Alcohol Limit (BAC) is below the legal limit. Obviously it goes without saying that a driver should never operate a vehicle while intoxicated or impaired by any substance. However, if you are stopped in a DWI check point and you have alcohol on your breath you may be arrested regardless of whether you are legally intoxicated or impaired.

Keep in mind that if you refuse to take the breath test your license to operate a vehicle in New York will be revoked for a period of one year regardless of whether you are convicted of DWI or DWAI. Remember that a good lawyer can challenge both the police testimony and the breath test results.

If you are arrested, summoned or charged with DWI, DWAI or any other driving related criminal offense contact an experienced New York DWI Lawyer as soon as possible who can help fight for your license and your rights.

New York criminal defense law firm Tilem & Campbell scored another major victory in a Brooklyn Criminal Court today when the firm’s client had the most serious DWI charges dismissed and plead guilty to the traffic infraction of Driving While Ability Impaired. The client had been charged with several misdemeanors including two counts of Driving While Intoxicated and Reckless Driving and faced up to one year in jail. The client blew a .17 on the breath test machine, more than twice the legal limit, according to police who also claim that the client drove into an active construction zone prompting the Reckless Driving charge.

The case was very hard fought and required eighteen appearances in Brooklyn Criminal Court over a period of more than 20 months. In the end the Kings County District Attorney’s Office relented on the day the trial was scheduled to begin after being confronted with numerous irregularities in the procedures followed by New York City Police discovered by New York criminal attorney Peter Tilem, the firm’s senior partner.

Tilem learned during discovery that the police had forced the client to take a second breath test, after the results of the first test were thrown in the garbage. Tilem was able to obtain a video tape of the police officer actually throwing the results of the first breath test on the garbage. Tilem also observed that the client was chewing gum during the breath test which is specifically forbidden according to the User’s Manual for the Intoxilyzer 5000. Tilem keeps a copy of the manual for the Intoxilyzer 5000, the breath test of choice for the New York City Police Department (NYPD), in his office for precisely these reasons.

This is the latest in a series of major victories for the firm in Brooklyn and elsewhere having had a Driving While Intoxicated case recently reduced to Disorderly Conduct in Kings County Criminal Court and having had a gun possession case recently dismissed in Kings County Supreme Court.

Here at the New York Criminal Defense Firm of Tilem & Campbell we often represent defendants who, in addition to being charged with Driving While Intoxicated or Driving While Ability Impaired (please see previous posts), refused to submit to a chemical test. Almost always, the chemical test in question is a Breathalyzer or similar machine such as an Intoxilyzer which is usually used in New York City or DataMaster which is often used in Westchester County. Our attorneys are often confronted with questions about the consequences of the refusal. There are no New York State criminal consequences; however, there are other consequences that result from a refusal. First, the refusal can be introduced at trial as what is known in New York as consciousness of guilt evidence. Second, at the time of your arraignment, the court will immediately suspend your license pending the prosecution of your case.

Whether one should refuse a chemical test or not is a complex question well beyond the scope of this Blog. As always, my advice is to consult with a skilled and experienced criminal defense attorney. This Blog provides general informative reading but is not a substitute for personalized legal advise.

Essentially, any person who operates a motor vehicle in New York is be deemed to have given consent to a chemical test of, among other things, his or her breath for the purpose of determining the alcoholic and/or drug content of that person’s blood. See generally VTL 1194(2)(a). However, before an officer may request that a motorist take a chemical test, either a lawful arrest for Driving While Intoxicated or Driving While Ability Impaired, or a positive result on a lawfully requested breath screening test must have occurred. (Note: a breath screening test is NOT a Breathalyzer but is instead a test of one’s breath (not blood) given by an officer on the side of the road. The machine used is a small handheld device. The results can be used to establish probable cause to arrest for DWI or DWAI but the results are not admissible at trial. Breath Screening Tests will be discussed in subsequent Blogs.)

Where a motorist, after being properly warned of the consequences, refuses to take a lawfully requested chemical test, his or her license is immediately suspended (at arraignment) and, if the defendant subsequently loses his or her Refusal Hearing, revoked for refusal to submit to the chemical test (most likely a Breathalyzer or similar machine). NY VTL 1194(2)(b)(1). Please view the diagram at tilemandcampbell.com to see specific revocation periods. Where a defendant refuses, the officer must prepare a “Report of Refusal” which is given to the judge at arraignment.

The arraignment court is then required to temporarily suspend the defendant’s license pending the outcome of a DMV Refusal Hearing. VTL 1194(2)(b)(3). (Note: in New York City arraignment usually occurs within about 24 hours, the accused is held in jail for that period pending the arraignment but in most courts in Westchester County a summons is issued and the arraignment can take place weeks later.) The arraignment court must then notify the defendant of his or her “Refusal Hearing” date. In that regard, VTL 1194(2)(b)(4) requires that the arraignment court provide the defendant with a scheduled Refusal Hearing date.

The Refusal Hearing is an excellent opportunity for your attorney to cross-examine the officer without the prosecutor present. Because the officer need not appear but instead, may simply provide his report, it is sometimes wise to subpoena the officer to the hearing. The Refusal Hearing itself will be addressed in subsequent Blogs.

As all New York Criminal attorney's know, very, very few criminal cases actually go to trial. The vast majority of cases are resolved with a plea bargain. This is especially true in the busiest Courts in New York such as Brooklyn, Manhattan and the Bronx where calendars of 100 cases or more per day are not uncommon. In fact, without plea bargaining, the criminal justice system would simply collapse.

The United States Supreme Court has recognized plea-bargaining as both essential and desirable. Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). Plea-bargaining results in several benefits: (1) the relief of court congestion; (2) alleviation of the risks and uncertainties of trial for both the government as well as the defendant:, and (3) its information gathering value that results from the government offering favorable pleas in return for cooperation, information and/or testimony. People v. Glendenning, 127 Misc.2d 880, 487 N.Y.S.2d 952 (N.Y.Sup. Westchester Cnty 1985).

In New York DWI cases, several factors come into play when plea bargaining takes place. In virtually all cases, the prosecutor is concerned with (1) the defendant’s prior criminal history, especially prior DWI or DWAI arrests (prosecutors typically consider arrests the same as convictions for plea purposes); (2) whether anyone was injured; and (3) whether there was any property damage. In DWI cases other considerations are whether there was an accident and whether the defendant refused to take a chemical test (i.e. a Breathalyzer). The DWI defendant also must be cognizant of the policy of the District Attorney’s Office in the particular county he or she is charged. For example, in Westchester, there will be no offer if the defendant refuses or “blows” .14 or above.

Finally, with rare exception, the law in New York requires that a defendant charged with Driving While Intoxicated plead guilty to Driving While Intoxicated (DWI) or Driving While Ability Impaired (DWAI). Therefore, a plea bargain will usually result in an alcohol related conviction (DWI or DWAI). Of course, the main goal in plea bargaining DWI cases is to negotiate a plea bargain wherein the defendant pleads guilty to the violation of DWAI. If, however, the district attorney, after reviewing the available evidence, determines that a DWI or DWAI conviction is not warranted, the district attorney may consent, and the court may allow a plea of guilty to another charge in satisfaction of the DWI charge. In such a case, the court must set forth on the record the basis for such disposition.

As one can see, an attorney who handles DWI cases must be well versed in the general plea policies that affect every criminal case, the particular District Attorney’s office policies germane to DWI’s as well as the statutory plea restrictions applicable to DWI cases. Clearly, those charged with a DWI or DWAI need an attorney experienced with such cases.

Last night I had the opportunity to begin my cross-examination of a Larchmont Detective who was the prosecutor’s sole witness in a suppression hearing that this firm was conducting on a Driving While Ability Impaired (DWAI) case against one of our clients. The case involves a woman who had a blood alcohol result of only .07 but was arrested in Larchmont, New York a small village in Westchester County. (Please see the last post for more information about the problems with prosecuting such low readings.)

While preparing for the suppression hearing and cross-examining this detective I was reminded of how important these hearings can be in DWI and DWAI cases. Sometimes these hearings can be more important than the trial itself. The stakes are high in suppression hearings. At stake is the suppression of the breath that was used to obtain the blood alcohol content reading and any statements that the police are alleging were made by the defendant. Without these critical pieces of evidence the prosecutor often has little hope of winning.

As a general rule in criminal law known as the “exclusionary rule” evidence and/or statements that are taken by the police in violation of the Constitution are to be suppressed by a Court and are therefore not admissible against the accused. Statements and evidence must also be suppressed if they are the “fruit” or result of the unlawful police conduct. In DWI cases these issues are critical.

The issues that must be explored by a skilled attorney and ultimately decided by a Court at such a hearing are numerous:
Did the police have reasonable suspicion for the initial stop of the defendant?
Did the police have probable cause for the arrest of the defendant?
Were Miranda warnings given to the defendant? At what stage?
Were field sobriety tests given? Were the tests properly administered?
How did the police Officer determine whether the defendant passed or failed?
Was the arrest pursuant to a checkpoint? If so was it constitutional?
The list of issues and subjects to be explored is too extensive for this article but you get the idea.

Last night the issue of the constitutionality of the roadblock was paramount and my questioning was so extensive that the Judge adjourned the case for several weeks so that I could continue my examination of the arresting Detective. Remember, this is usually a criminal defense attorney’s first opportunity to cross-exam the police witness in the case. It also usually the last opportunity before the actual trial so it’s important to go slow, be thorough and explore every relevant avenue in order to attack the lawfulness of the police officer’s conduct.
It’s also important not to take anything at face value. While I don’t want to give away too much about my cross-examination in a forum that could easily be read by a police officer that I was going to cross-examine, it’s important to be aware that just because a field sobriety test was administered doesn’t mean that it was administered correctly. Ask questions! Just because a roadblock was conducted doesn’t mean it was lawful. Ask questions!

If you ask the right questions, you might just be surprised by the answer. And perhaps the prosecutor will be forced to try his or her case without the evidence they so desperately want to use.

Lawyers in this firm have been seeing a large number of arrests for DWI in New York in which the blood alcohol content (BAC) as determined by the breath test is exactly at or even below the legal limit. Jurisdictions that seem to be prosecuting cases that are either exactly on or a little below the legal limit have included Brooklyn and various jurisdictions in Westchester County including the Village of Larchmont, the Town of Greenburgh and the Village of Mamaroneck. While I have not seen any statistics on this phenomenon we have handled many of these cases and have heard about others.

The problems with prosecuting these cases are significant and in order to fully understand the issue one must have at least a basic knowledge of how breath tests work. Firstly, it’s important to understand that the statutory blood alcohol levels refer to the level of alcohol in a person’s blood. Despite this, in the overwhelming majority of cases it is a person’s breath that is tested not their blood. In order the convert the percentage of alcohol in breath into the blood alcohol content defined by statute, the breath machine must make a calculation based upon something called the “blood-breath” relationship. Since the “blood breath” relationship is not the same for every person, this builds in a certain level of error in determining blood alcohol content.

If a person registers a .08 blood alcohol content, even a slight error in the calculation can mean the person is really slightly below the legal limit and therefore not guilty of diving with a blood alcohol content above the legal limit. This fact would not preclude a conviction for something called common law intoxication in which a person’s intoxication can be proven through other factors such as swerving, or failing coordination tests (often called field sobriety tests).

The other issue is that we have seen arrests for blood alcohol levels as low as .068 and heard about arrests for blood alcohol contents in the .05’s. This means that you can be arrested for consuming as few as 2 drinks in two hours depending on your weight, sex and level of experience. This site put together by the State of Connecticut contains several charts that show the relationship between number of drinks and blood alcohol levels.

The bottom line is be careful. It now seems abundantly clear that in certain jurisdictions if you are stopped and have the odor of alcohol on your breath you may be arrested even if your blood-alcohol content is below the legal limit.

As I discussed in my previous post, DWI charges in New York and New Jersey can effect people from all walks of life and have very serious consequences. Getting an experienced lawyer involved early can make the difference. Evidence needs to be obtained and preserved. For instance, are there credit card receipts or restaurant bills that can be obtained and demonstrate how much alcohol was consumed? Are there bartenders, waiters friends or family members that need to be interviewed and if there was an accident has the car and/or scene been photographed? Put simply, there are a myriad of facts that can be sought and preserved to obtain evidence to be used for your case.

Yet despite all of these potential avenues of attack and the severe consequences of a guilty plea, many attorneys simply recommend that their clients plead guilty without thoroughly investigating the case and without fully explaining all of the consequences of a guilty plea.

This is a scary period of time. You cannot afford to lose your head. The bottom line in all of this is simple. Consult an experienced attorney that you trust as soon as possible. Make sure that the lawyer you hire handles DWIs and then follow his or advice. Ask questions. Make sure you understand your rights and your responsibilities. All too often your actions after your arrest including when you hire an attorney and who you hire can have a significant effect on the outcome of the case.

Peter Tilem, is a practicing criminal defense lawyer in White Plains, New York and is Of Counsel to Fischer Porter & Thomas in Englewood Cliffs, New Jersey. He is a former prosecutor in Manhattan and has handled numerous DWI cases as both a prosecutor and defense attorney.

As if to prove the point of my last post about the pervasiveness of Drinking and Driving in the New York metropolitan area, I just came across the article about a prominent New York Attorney, Albert Gaudelli getting arrested in Queens for DWI.

What particularly caught my attention about this case is that he was apparently drinking at a party hosted by Queens District Attorney Richard Brown who will now be responsible for prosecuting Mr. Gaudelli. In addition, if you read the article, you will see that Mr. Gaudelli, a prominent criminal attorney in New York, also tried to escape from the police by backing away and hitting a police car in the process.

Many of you may remember Albert Gaudelli as the attorney who represented Nicholas "Fat Nick" Minucci in the Howard Beach, New York hate crime trial.

Interesting that a trained criminal defense attorney felt it was better to try to evade the police than to attempt to fight these charges in Court.

In New York and New Jersey Driving While Intoxicated (DWI) is one of the most pervasive charges facing individuals today. Pervasive in that it is a charge that unlike most other criminal charges, pervades every element of our society. Unlike other criminal defendants who are more often young and poor and often have extensive criminal records, people charged with DWI include teens and baby-boomers, blue collar and white collar individuals, people who drive for a living, and people who would never even think of committing another crime. And pervasive because few other charges can have such far reaching effects. While most criminal charges can result in probation, a fine or even jail, few other charges can result in the loss of your driving privileges and long lasting effects on your insurance premiums. In addition, a conviction can leave you with a permanent criminal record. (In New Jersey the average DWI conviction can cost over $3500 exclusive of insurance premium increase and attorneys fees)

Yet, despite these consequences, few who are accused and few lawyers ever challenge these cases thinking that the prosecution’s case is to strong to successfully litigate.
To further complicate the matter, the recent trend towards toughening DWI laws has created a maze of statutes that are often confusing to not only individuals but also to all but the most experienced lawyers. For instance, while most states suspend or revoke the license of those who refuse to take a breath or other chemical test, New York State now also suspends the licenses of those who do, prior to conviction, while the matter is being litigated. In addition, many places also summarily seize your vehicle.

In addition, the recent reduction in the statutory limit to .08% blood alcohol content now criminalizes having only a few drinks with dinner. Yet, a person doesn’t actually have to be driving the car to be charged with DWI. Merely sitting in the driver’s seat, with the key in the ignition can be considered “operating” a motor vehicle for the purposes of a DWI arrest and conviction.

As dire as these charges seem, all is not lost. Many breath machines have been proven to be inaccurate. In addition, constitutional challenges to the admissibility of evidence can severely hurt the prosecutions chances of obtaining a conviction, and a skilled attorney can often, through appropriate cross-examination, show the arresting officer to be less than reliable in his observations and recollections concerning a DWI arrest.