A client facing 7 charges including two counts of DWI, two counts of driving without a license and several traffic infractions had all of those charges dismissed and instead plead to one count of disorderly conduct a no point violation in Rockland County last week. The client who was charged in the Village of Sloatsburg was charged with two counts of Driving While Intoxicated under Vehicle and Traffic Law 1192 (3), two counts of Driving without a License under VTL 509, one count of failure to keep right in violation of VTL 1120 (a) and one count of failing to use designated lane in violation of 1128 (c) as well as improper plates under VTL 402(2). In addition the client was charged separately in the Department of Motor Vehicles with Refusing to take a Chemical Test which in this case was a breathalyzer test. The Refusal in the DMV was dismissed after a contentious hearing, as we have already reported. Now we are please to report that all of the DWI and VTL charges have been dismissed as well.
The client, who had two prior convictions for DWAI (Driving While Ability Impaired by Alcohol) from 2007 and 2012 was facing a lifetime revocation of his driving privileges as a result of his prior record if he had either been convicted of any alcohol related driving offense such as DWI or DWAI or if he had been found to have refused a validly requested chemical test.
The victory came after we made an application to the Court seeking suppression of inculpatory statements or in the alternative asking the Court to hold an evidentiary hearing on the issues. During the hearing during my cross-examination of the arresting officer it seemed unlikely that the officer was telling the truth. Some of the arresting officer’s answers seemed improbable and in some cases inconsistent with sworn statements made in his paperwork. In an attempt to verify the arresting officer’s story I asked the officer about any electronic recordings of the incident. The following colloquy occurred:
Question [by Peter H. Tilem, Esq.] : By the way, the datamaster room, is there a video camera in there?
Answer [by Arresting Officer]: Our whole station is video, yes.
Q: And are those videos recorded?
Q: Did you turn over the recordings to the DA’s Office?
A: As far as the video in that data master room, no.
Q: Did you have a vehicle equipped with video or audio recording . . . when you made the arrest?
Q: And was the recording working?
Q: Was the recording turned over to the DA’s Office?
A: The recording, no.
Q: With regard to your body, did you have any sort of body cam on that date?
A: We had–we have a recording attached to our gun belt.
Q: And was it recording on the date of the incident?
Q: And did you turn over those recordings to the DA’s office?
A: No, I didn’t.
That is right. The police had three separate recordings that may have recorded either all or part of the alleged incident involving our client and neither, I, the prosecutor nor the Court would have known if I didn’t ask those questions starting on page 54 on my cross-examination of the arresting officer.
It is important to remember that DWI cases are serious and those charged with DWI face serious consequences. Therefore, a thorough defense attorney must attorney must examine each case very carefully.