DWI/DWAI Category Archives — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

Domestic Violence and Sentencing Relief Under the DVSJA

May 30, 2025 | Peter Howard Tilem

If you’re a survivor of domestic violence and serving time for a crime you committed while in an abusive relationship, you may be wondering whether New York law allows you to be resentenced based on your trauma. Under Criminal Procedure Law § 440.47, the Domestic Violence Survivors Justice Act (DVSJA) offers exactly that opportunity. But to qualify, you must meet specific criteria—and proving your case takes more than simply showing you were abused. A recent appellate decision out of Nassau County shows exactly where these motions can succeed or fall short.

The Facts Behind the Motion

In 2014, the defendant in this case was involved in a serious car crash that left another driver with life-altering injuries. At the time, she was operating her vehicle while under the influence of drugs. She later pleaded guilty to multiple felony and misdemeanor offenses, including first-degree assault and vehicular assault, and received a ten-year prison sentence as a second felony offender.

Can a Police Officer Legally Question and Detain You in Your Driveway?

March 14, 2025 | Tilem & Associates

In a recent case before a New York criminal court, a police officer followed a suspect from the public street into her driveway when he suspected that she was driving while impaired. The officer asked the suspect to step out of her garage after she parked her vehicle. At that point, he conducted field sobriety tests and arrested the defendant for driving while intoxicated (DWI). At issue before the court on appeal was whether the officer had the legal right to enter the defendant’s property to question and then arrest her.

The Fourth Amendment

Under the Constitution’s Fourth Amendment, we all have the right to privacy and to security in our own homes and the right against unreasonable searches and seizures. According to case law, “the Fourth Amendment has drawn a firm line at the entrance to the house,” which means that only in rare circumstances can an officer enter a person’s private property without either consent or a valid warrant. A person’s house, as well as the area immediately surrounding it, fall under the protective umbrella of the Fourth Amendment.

The Court’s February 2025 Decision

Even given the important protections provided by the Fourth Amendment, the court in this case ruled that the officer did have the right to arrest the defendant outside of her garage. This was the case for several reasons: first, the suspect agreed voluntarily to exit her garage and speak with the officer. Second, the officer reached the defendant’s garage by way of public roads. The defendant’s driveway did not make any indication that she expected privacy outside of her garage. Instead, there was “unobstructed access” to the driveway, leading the officer to believe that he could enter the driveway without incident.

Can a Police Officer Lie to Elicit a Confession from a Suspect in New York?

December 5, 2024 | Peter Howard Tilem

In a recent criminal case before a New York court, the defendant appealed her conviction for driving while under the influence of drugs. According to the defendant, the police officer lied to her when he questioned her directly after the car accident she caused. This deception, she argued, was grounds for the resulting drug test results to have been suppressed by the trial court. The disagreed, citing New York case law explicitly stating that police officers are permitted to lie to suspects to get them to cooperate.

New York Case Law

According to case law in New York, “police are permitted to lie or use some deceptive methods” in order to encourage a suspect to cooperate. If the officer in question does not implicitly or explicitly threaten the suspect, it is lawful for the officer to use the coercive tactic of deception to encourage cooperation.

In the criminal case related to driving under the influence, the officer questioned the defendant because she had hit another vehicle with her car. It became apparent to the officer that the defendant appeared to be under the influence of some substance, and he told her that she might not be arrested if she took (and passed) a drug recognition examination. The defendant proceeded to take the exam, and she failed. In a subsequent motion to suppress, the defendant argued it was illegal for the officer to lie to her and tell her that she might not be arrested if she passed the test.

Controversial Case Before New York Court of Appeals Demonstrates Differing Perspectives on Cross-Racial Identification Instruction

June 24, 2024 | Peter Howard Tilem

In 2017, New York case law created a new precedent indicating that when identification is an issue in a criminal case, and when the identifying witness and defendant are seemingly of different races, the defendant is entitled to a charge on “cross-racial identification.”

This means that when a witness identifies a defendant as the person that committed a crime, and when the witness and defendant are of different races, the defendant has certain rights. The defendant can, for example, request expert testimony, specific questioning, or a jury instruction on what it means to identify a person of a different race. The relevant case law is based on the theory that it is easier to make a mistake when identifying a person of a different race.

Assault and Criminal Possession Case

In a recent case before a New York court, the defendant pled not guilty to assault and criminal possession of a weapon. The victim of the assault was the only person who saw the crime happen, and the entire case was built on the victim’s identification of the defendant as the one who assaulted him. Of note, the defendant and the victim were different races.

New York Defendant Successfully Lowers Sentence in DWI Case, Arguing Two-Year Sentence Imposed by Lower Court was Excessive

September 27, 2023 | Peter Howard Tilem

Recently, a defendant in a New York DWI case filed an appeal of the lower court’s decision regarding his sentence for driving while intoxicated and criminal mischief. The lower court had sentenced the defendant to two years in prison, which the defendant argued was excessive. The higher court looked at the record of the case and determined that the sentence was, indeed, excessive. The court therefore granted the defendant’s appeal and re-sentenced him to six weeks’ incarceration.

Facts of the Case

According to the opinion, the defendant was charged with several crimes, including: driving while intoxicated (“DWI”), making an unsafe lane change, leaving the scene of an accident without reporting, and criminal possession of a controlled substance.

Under advice from counsel, the defendant entered into a plea deal with the State. As part of that deal, he promised that if he failed to complete a treatment program through drug court, he would face a sentence of up to two years in prison. The defendant then began his treatment program, but he soon tested positive for THC and later withdrew from the program.

New York Supreme Court Sides with State in DWI Case

October 8, 2022 | Peter Howard Tilem

In a recent New York DWI case that came before the Appellate Division of the Supreme Court, the defendant argued that his criminal convictions should be reversed because the police officers did not give him adequate Miranda warnings before interrogating him about his charges. On appeal, the court looked at the circumstances of the defendant’s case and determined that no warnings were necessary because he was not in “custody” at the time of the questioning. Ultimately, then, the court disagreed with the defendant’s argument and affirmed the convictions for aggravated DWI and aggravated vehicular homicide.

Facts of the Case

According to the opinion, police officers and emergency responders came immediately to the scene of an automobile collision after receiving reports that it had taken place. When the officers first arrived at the scene, the defendant was face-down and injured in a ditch. While the defendant waited on an ambulance to arrive, the police officers placed him in the back of their patrol vehicle. Sitting in the back of the car, the defendant made several incriminatory statements about the accident in question.

It was later discovered that the defendant was intoxicated while driving. Tragically, the passengers in the second vehicle died as a result of the crash, and the defendant was charged with aggravated driving while intoxicated as well as aggravated vehicular homicide. The defendant pled guilty, and he was subsequently convicted and sentenced to time in prison.

New York Court Denies Defendant’s Appeal in Aggravated Vehicular Assault Case

September 23, 2022 | Peter Howard Tilem

Recently, an appellate court in New York ruled on a defendant’s appeal in a case involving assault, manslaughter, and reckless endangerment. The defendant in this case argued that the search warrant leading officers to incriminating evidence against him was invalid and that his guilty verdict should be reversed. On appeal, the court disagreed, deciding that the warrant was valid and that the officers did indeed have probable cause to search the defendant. The defendant’s appeal was ultimately denied.

Facts of the Case

According to the opinion, the defendant was driving early one morning in March 2015 when he collided head-on with a tractor-trailer. Police reports indicated that the defendant had been driving in the opposite direction of traffic at 75 miles per hour and that he had consumed several alcoholic beverages before driving. Tragically, two of the passengers in the defendant’s car died from injuries sustained in the accident.

A police officer then applied for a warrant to gain access to the defendant’s blood vials that had been drawn immediately after the accident. The criminal court issued the warrant, and the officer confirmed that the defendant was intoxicated while operating his vehicle.

New York Court Denies Defendant’s Appeal in DUI Case

April 20, 2022 | Peter Howard Tilem

In a recent opinion from a New York appellate court, the defendant unsuccessfully appealed his convictions of attempted assault in the second degree and operating a motor vehicle while intoxicated by alcohol. The defendant argued that the blood sample the State used as evidence against him was both based on an invalid search warrant and was inadmissible in court. Disagreeing with the defendant on both arguments, the court denied the appeal and affirmed the guilty verdict.

Facts of the Case

According to the opinion, the defendant had been charged with violating a traffic law in New York one evening in 2017. In connection with the accident that occurred as a result of the defendant’s violation, he was taken to the hospital and his blood was drawn for medical purposes. One month later, while investigating the original violation, the State applied for and was granted a search warrant and order of seizure for the defendant’s blood sample. After examining and testing the blood sample, officers discovered that the defendant had been intoxicated at the time of the traffic violation.

Based on this information, the defendant was charged, convicted, and sentenced to time in prison.

New York’s Highest Court Determines that Two Hour Rule For Breath Tests is not Applicable to Revocation Hearing

April 3, 2022 | Tilem & Associates

In a recent New York DWI case coming out of the New York Court of Appeals, New York’s highest Court, the defendant lost his appeal challenging the court’s previous decision to take away his license. Previously, the defendant had refused a chemical test when an officer pulled him over for a DWI. Because of this refusal, the New York State Department of Motor vehicles (NY DMV) revoked his license. The defendant argued on appeal that he had every right to refuse the officer’s request to test him because more than 2 hours had lapsed between the arrest and when he refused the test, but the court disagreed and affirmed the original decision.

Facts of the Case

According to the opinion, the defendant in this case was arrested for driving while intoxicated in 2016. About three hours after police officers arrested the defendant, the officers warned the defendant that there would be consequences if he decided not to consent to a chemical test. Despite this warning, the defendant refused the test.

In New York, drivers charged with a DWI are subject to something called the two-hour rule, which says that a driver who appears drunk must be tested either within two hours of the time of the arrest or the time of a positive breath screening test. Because of this law, the defendant’s refusal to submit to a test resulted in another hearing, during which the court had to decide whether or not to take away his license.

Defendant’s Challenge to DWI and Assault Convictions is Rejected by Appellate Division

March 6, 2022 | Peter Howard Tilem

An arrest for driving while intoxicated (DWI) can be a serious charge with serious consequences in the event of a conviction. If an intoxicated driver also injures another person in an accident while driving under the influence, they may be charged with criminal assault as well as the DWI offense. Because of the serious implications that both DWI and violent crime charges can have on one’s record, it is important for people charged with such crimes to mount a strong legal defense from the start. The Appellate Division of the Supreme Court of New York recently addressed an appeal by a man who was convicted of DWI and assault charges after being involved in a head-on collision while allegedly intoxicated.

According to the facts discussed in the appellate opinion, the defendant was arrested after he was involved in a crash where he crossed over a double yellow line and struck another vehicle, seriously injuring the occupants. After consenting to a blood test, the defendant was found to have a blood alcohol content in excess of the legal limit, and he was charged with DWI and assault offenses. The defendant attempted to suppress the results of the blood test, arguing that there was no warrant or probable cause for the officer to draw his blood. The appellate court rejected the defendant’s arguments, finding that he had consented to the blood draw and no warrant was needed. The defendant also appealed his conviction on other grounds, which were not addressed by the court because his trial counsel did not make the appropriate objections to preserve those arguments for appellate review.

Trial judges who make legal errors that violate the rights of defendants can be reversed by appellate courts if the proper procedures are followed. One requirement for a ruling to be reversed on appeal is that the ruling was objected to at the lower level. When a criminal defense attorney fails to properly object to an erroneous trial court decision, their client may not be able to get the appropriate relief, even on appeal. Rather, it is essential that a trial attorney “preserve” an issue for appeal by making a timely objection during the trial. Because of this, it is essential for defendants to retain experienced and knowledgeable criminal defense counsel as early in the process as possible.