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Articles Posted in DWI/DWAI

Many of our clients who are charged in New York DWI cases are  confused by the differences in the two tests that they may have been offered by the police. Very  often, police officers will offer a portable breath test (PBT) to a motorist on the side of the road to help them determine whether there is probable cause to arrest someone for DWI.  The refusal to take such test is punishable by a traffic infraction which can result in 2 points being assessed on your driver’s license.  After a person is arrested for DWI they will be offered the opportunity to take a chemical test by either blood, breath or urine.  The refusal to take that test is very serious and can result in a revocation of a person’s driver’s license for a minimum period of one year.

Prosecutors seeking to introduce scientific or technical evidence in a criminal trial have a burden to prove that the evidence is reliable enough to put before a jury. Jurors are not expected to be familiar with the technical specifications of alcohol and drug testing equipment, and prosecutors must show that the methods used by law enforcement to obtain evidence are generally accepted by the relevant scientific community in order to introduce test results as evidence at trial. A New York criminal trial court recently published a decision denying a prosecutor’s request to admit the test results of a portable breath test (PBT) in a defendant’s DUI trial.

In the recently addressed case, the defendant was charged with a DUI offense after he was pulled over by law enforcement officers for violating traffic laws. After he was stopped and the officer claimed to observe signs of intoxication, officers administered a PBT to the defendant, which suggested his blood alcohol content was above the legal limit. As a result of the PBT results, the defendant was arrested and charged with a DUI. Notably, a second non-portable breath or blood test was not administered to the defendant while he was at the police station.

One of the most common defenses to a New York DWI offense is challenging the admissibility of the government’s evidence. When police officers investigate someone for driving under the influence of drugs or alcohol, they must respect the constitutional rights of the motorist. For example, a police officer cannot pull over a driver for no reason; they must have either probable cause or reasonable suspicion to believe that an offense occurred. Similarly, police officers cannot ask that every driver take a breathalyzer without justification. If a police officer exceeds the bounds of their authority, any evidence they recovered cannot be admitted at trial.

However, if you wish to challenge the admissibility of evidence, it is imperative that you do so in a timely manner. In a recent case, a New York appellate court rejected a defendant’s appeal because he failed to raise his objections to the admissibility of evidence in a pre-trial motion to suppress.

In that case, the defendant was arrested and charged with two DWI-related offenses. The arrest occurred after police officers used a radar gun to determine the defendant was speeding. As officers approached the car, they identified the smell of alcohol and noticed that he had bloodshot eyes. Officers asked the defendant had been drinking, and he responded that he drank two beers. The officer called backup, who administered a breath test, indicating the defendant was intoxicated.

One of the benefits of working with an experienced criminal defense attorney is that your attorney will often be able to work out a deal with the prosecution. Negotiated plea agreements vary widely, depending on the circumstances, however, the general idea is that you should receive a benefit for accepting responsibility and not making the government take the case to trial.

In some cases, a negotiated plea agreement, or a plea bargain, will result in certain charges being withdrawn. In other situations, the charges remain, but a more favorable sentence is agreed upon. A third option is a conditional plea agreement.

In a conditional plea agreement, you enter a guilty plea on all charges that are a part of the agreement. In addition, you agree to fulfill certain conditions within a specified period of time. In exchange, the prosecution agrees that you will only be convicted of certain offenses if you successfully complete the conditions. However, if you fail to satisfy the condition, the judge will sentence you on all the charges you plead guilty to.

An appellate court recently reversed a defendant’s motion to suppress all evidence from a New York DWI stop. According to the record, a police officer testified that he received a report that people were smoking marijuana in a white sedan. The informants provided the officer with a license plate number and an approximate location. Coincidentally, the officer was driving right behind the vehicle in question. As the officer was following the vehicle, he noticed the car’s tires go up a curb while the driver attempted to make a right turn. Another police officer testified that she arrived at the scene while the tires went up the curb. Both officers testified that seconds after the tires went up the curb, the original officer turned on the police car’s emergency lights and stopped the sedan. During the stop, the officers detected the smell of marijuana and subsequently arrested the driver.

The accused motioned the court to suppress all evidence from the stop because the vehicle stop was illegal. The City Court issued an order finding that the People did not meet their burden of establishing the lawfulness of the stop. In response, the People appealed, contending that the stop was lawful.

Under New York’s Vehicle and Traffic Laws § 1225-a, no person shall drive on or across a sidewalk. An exception exists if the driver must drive on the sidewalk if it is reasonable and necessary. In those situations, the driver must not exceed five miles per hour or interfere with the safety and passage of pedestrians.

A New York court recently issued an opinion addressing several questions stemming from a defendant’s New York driving while intoxicated charges. Amongst several issues, the court addressed whether New York’s fellow officer rule applied to the facts of the accused’s case. According to the record, a police sergeant received a call from an off-duty police officer about a reckless driver. The sergeant did not testify as to what information he received that led him to believe that the driver’s actions were reckless. Nonetheless, the sergeant followed the driver and observed him make two turns without signaling. At that point, the officer turned on his lights and tried to stop the driver. After stopping the defendant, the sergeant contacted a fellow officer to continue the investigation.

At issue is whether the officer was justified in asking the defendant’s “second-level questions.” The fellow officer rules allow a police officer to make an arrest even without personal knowledge to establish probable cause. The law would permit this if the officer acted “upon the direction or communication with “a “fellow officer” who has sufficient information to constitute probable cause. In these cases, the officers are permitted to ask “level one” questions. These questions are non-threatening inquiries about one’s identity, address, or destination.

Courts reviewing motions to suppress stemming from the fellow officer rule must engage in the two-pronged Aguilar-Spinelli test. This test requires courts to assess whether the information the officer acted upon is reliable. Next, the test evaluates whether the informing party possessed an “adequate basis of knowledge” for providing the information. While information received from a law enforcement officer is presumptively reliable, the People must still satisfy the second part of the test.

There are significant ramifications after one is charged or convicted of a New York DWI criminal offense. These cases can impact a person’s rights in many ways, including, fines, surcharges, loss of driving privileges, probation and jail and pose serious reputational, financial, and familial issues. Individuals who face these charges should consult with an attorney to discuss their rights and defenses.

New York Vehicle and Traffic Law (VTL), provides that individuals stopped by police for suspicion of driving while ability impaired by drugs (DWAI) or driving while intoxicated (DWI) will be asked to submit to a chemical test to determine the content of alcohol in their blood, breath or urine. These tests typically involve both a field breath test and a chemical breath test at a police station. The law allows motorists to refuse these tests, however, if they are arrested and refuse a properly requested chemical test their driver’s license will be immediately suspended and if after a hearing an Administrative law Judge finds that a properly requested breath test was refused, DMV will revoke the driver’s license for a minimum of 1 year.  Drivers who have been stopped or accused of DWI often struggle to decide if they should comply with a test, and if so, which one.

New York state law breath analysis tools measure an individual’s blood alcohol content (BAC) and must be approved by the state’s Department of Health. The breathalyzer an officer uses must be on the approved list of devices, however, these devices like any other instrument may be prone to defects.

Earlier this year, a state appellate court issued an opinion in a New York Drinking and Driving case discussing the standard courts use to determine whether a police officer’s actions were justified in stopping a parked car. Ultimately, the court concluded that the officer’s stop of the defendant was valid, affirming the defendant’s convictions.

The Facts of the Case

According to the court’s opinion, a police officer was on routine patrol around 1:45 in the morning when he saw a vehicle parked in a gas station parking lot. The officer thought it was odd, considering the gas station was closed and pulled up to investigate.

As the officer passed the vehicle, he saw the defendant slumped over the steering wheel. The officer exited his car to “make sure the driver was alright.” Initially, the officer banged on the window, but the defendant remained still. The officer then opened the unlocked car door and shook the defendant until he came to. At this point, the officer could smell alcohol on the defendant’s breath, leading to the defendant’s arrest.

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As DWI lawyers, we have to be concerned about the numerous potential collateral consequences to a DWI arrest.  The day non-U.S. citizens receive their Permanent Resident Card—more popularly known as a green card—is probably one they will never forget.  Being green card holders will finally allow them to enjoy benefits they’ve never had before, including sponsoring immediate family members to stay in the U.S. with them and traveling more smoothly in and out of the country.  However, green card holders can jeopardize their lawful permanent resident (LPR) status if they commit what’s referred to as “crimes of moral turpitude,” which can include Driving While Intoxicated or DWI.

For an American citizen, the consequences of a DWI conviction can be harsh enough. The potential for jail time, probation, heavy fines, driver’s license suspension or revocation, and ignition interlock installation are among the penalties that await DUI offenders.  For a green card holder, the outcome of a DWI can be so much worse.

Possible Deportation

Earlier this year, a state appellate court issued a written opinion in a New York DWI case involving a defendant’s motion to suppress evidence that was obtained during what she claimed was an illegal arrest. Ultimately, the court found that the officer did not conduct the field sobriety tests correctly, but still had enough evidence to arrest the defendant for driving while intoxicated. Thus, the court reversed the lower court’s decision to grant the defendant’s motion to suppress.

The Facts of the Case

According to the court’s opinion, a police officer observed the defendant driving erratically. Among other things, the officer claimed to see the defendant driving 20 to 25 miles per hour in a 45 mile-per-hour zone. After a few moments, the officer turned on his dashcam, pulled over the defendant, and administered field sobriety tests. None of the defendant’s erratic driving was caught on the video footage.

The officer conducted field sobriety tests, determining that the defendant was intoxicated, and arrested her for DWI. The defendant then made an inculpatory statement and agreed to a breath test, which indicated she was intoxicated.

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Recently, a New York appellate court issued a written opinion in a New York DWI case discussing the defendant’s motion to suppress evidence obtained during what could be characterized as a “wellness check.” Ultimately, the court held that the officer’s actions were justified, and denied the defendant’s motion.

The Facts of the Case

According to the court’s opinion, an officer was on routine patrol when he saw a truck parked along the side of the road with no one inside. The officer pulled up behind the vehicle, noticing that it was running. The officer then exited his car, approached the driver’s side door, and saw that the defendant was hunched over the wheel, asleep.

The officer tapped on the window, and after about 30 seconds, the defendant came to. The officer asked him out of the car several times, and on the third time, the defendant complied. During this time, the officer noticed that the defendant seemed intoxicated. Specifically, the defendant had “bloodshot, watery eyes, dilated eyes, slurred speech and a strong odor of alcoholic beverages emanating from the vehicle.”

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