Articles Posted in DWI/DWAI

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Experienced DWI attorneys understand the potential errors associated with breath test machines even when calibrated and functioning properly.  However, recently a New Jersey State Police Sergeant assigned as a coordinator in the Alcohol Drug Testing unit has been arrested for skipping a step in the recalibration of breath test machines and falsifying records to certify that he performed the required check.  Specifically, the Sergeant is alleged to have skipped the temperature check while re-calibrating the machines and then falsely certifying that he performed the check.  The Sergeant was responsible for calibrating breathalyzers in Middlesex, Ocean, Monmouth, Union and  Somerset counties over a period of seven years and State officials have identified well over 20,000 DWI cases that could be affected by this arrest.  This arrest comes on the heels of a Police lab technician having been accused of faking a test in a Marijuana case last December.  That disclosure put into question almost 15,ooo cases.

The issue with breath tests is even more acute than drug cases because generally the police do keep the drugs that were tested for a period of time even after a conviction and so those drugs are available to be retested.  However, when you give a breath sample, no part of the sample is maintained for retesting and therefore the momentary reading from the breath machine plays a crucial part in the case.  In addition, in most drug cases the issue is the presence or absence of a controlled substance and the total weight of the substance.  The concentration of the controlled substance in the sample does not matter.  In DWI cases, however, small differences in the percentage of alcohol detected in a breath sample can have a huge impact on the outcome of a case and can in fact impact whether charges are brought or not.

The issue of calibration goes to the heart of the accuracy of these devices and goes to the heart of the accuracy of what is often the key evidence in DWI cases.  For example, body temperature can affect the breath reading and as experienced DWI lawyers understand a person with a fever can have an artificially high read on a breath test.  Therefore, of course, the temperature of the simulation solution during a re-calibration can be critical. The problem is compounded by the substantial weight given to the results of these machines by prosecutors, courts and even jurors and at the same time manufacturers of breath machines attempt to keep the inner workings of these machines a secret, treating the inner workings of the machine as a trade secret.

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New York’s new sealing law which authorizes the sealing of up to one felony conviction and two total convictions went into effect in New York last week and is already creating new possibilities for those with old criminal convictions.  Up until recently a New York expungement law would be considered to be almost impossible.  After all as experienced criminal defense lawyers there is rarely a week that goes by without a call from someone asking about “expunging” criminal convictions and we as attorneys were frustrated with what used to be the answer; that there was no way of sealing old criminal convictions in New York.

Like all the uncertainty surrounding all new laws no one really knows how impactful CPL 160.59  will be.  One factor will be whether prosecutors routinely oppose applications to seal under CPL 160.59 or not.  The other will be what types of hearings are used by the Court and lastly how generous will the Courts be in sealing old convictions.

Another question pertains to the use of prior alcohol related driving convictions to deny people driver’s licenses.  The New York Department of Motor Vehicles (DMV) is currently applying a twenty-five year look back and denying those with three or more alcohol related driving convictions reinstatement of their driver’s licenses.  These revocations are essentially turning into lifetime revocations.  As we reported last month, our firm has already filed a lawsuit against DMV because we believe that prior DWI convictions cannot be used to deny people licenses if the Court (or the Department of Corrections)  has issued a Certificate of Relief from Civil Disabilities or a Certificate of Good Conduct.

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DUIs can have a serious impact on recipients, causing financial distress and jeopardizing their ability to operate a motor vehicle. Even if you have been charged with a DUI, there may be a number of defenses available to you to alleviate the charge and to ensure that you are not punished unfairly. At Tilem & Associates, our seasoned New York City DUI attorneys have substantial experience analyzing DUI claims and helping individuals fight an unfair charge.

The following recent appellate opinion illustrates why consulting with a criminal defense lawyer as soon as possible can make a huge difference in protecting your rights. The defendant was arrested for driving while under the influence in addition to a number of other traffic-related violations. The arresting officer transported him to the nearby station at which point two other officers observed the breath-testing procedure. Both officers were experienced administrators of the test and familiar with using the device. One of the observing officers administered the test, which involves a 13-step procedure, and the other officer took a video recording of the test.

The defendant was unable to perform a proper breath sample on his first two tries, resulting in two errors. The machine had to be reset each time. On the third attempt, the machine printed out a test result showing that the defendant’s BAC was 0.25.

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New York law firm Tilem & Associates has filed an Article 78 lawsuit against the New York State DMV based upon the DMV policy of instituting a lifetime revocation against certain drivers who have multiple alcohol related driving incidents.  Although the policy was previously upheld in Court the revocation policy as it pertains to drivers who have had a Certificate of Good Conduct or a Certificate of Relief from Civil Disabilities issued to them is illegal and violated several provisions of New York State Law according to the lawsuit.

In 2012 the New York State Department of Motor Vehicles changed its regulations to institute a lifetime ban on what DMV termed “persistently dangerous drivers.” The term persistently dangerous driver applies to drivers who have three alcohol (or drug) related driving offenses and another serious driving offense in a 25 year period.  The new regulations have been challenged in Court and have been repeatedly upheld by Courts throughout New York State.  However, the new Court challenge relates to an individual with 4 alcohol related driving offenses including two felony DWI cases and a state prison sentence of 2-6 years in prison but who had a Certificate of Good Conduct issued to him by the New York State Department of Corrections and Community Supervision.  Specifically, the Certificate of Good Conduct “provides relief from forfeitures, disabilities or bars to employment and licensing automatically imposed by New York State law as a result of his conviction.”

Certificates of Good Conduct and Certificates of Relief from Civil Disabilities are defined under the New York State Correction Law §703-a and §703 respectively and after a thorough investigation permit the Court or Parole Board to create a presumption of rehabilitation.  Moreover, New York State Correction Law §752 specifically prohibits the denial of a license based upon a previous conviction or based upon lack of good moral conduct if either a Certificate of Good Conduct or Certificate of Relief from Civil Disabilities is issued.  New York State Correction Law §752 does set out two exceptions to that general rule.

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As very experienced New York DWI Attorneys we are often asked to assist other attorneys on complex DWI cases.  Recently, that request paid off for the attorney and his client after all charges related to a Rockland County DWI were dismissed.   In November Tilem & Associates was hired to take the lead in a suppression hearing for a client who was facing DWI charges and who was not being offered any plea bargain.  We had sought the suppression of statements and breath that we asserted were taken illegally from our client after he was illegally taken out of his car.

At the suppression hearing, one police officer testified.  The officer claimed that in response to a 911 call the officer responded to a location and saw our client in a vehicle that matched the description given to the 911 operator.  On cross-examination, by me, the officer admitted that at the time the officer approached the vehicle and removed the driver from the vehicle that there was no reason to believe that the motorist had committed any offense other than a parking violation for parking on the line in a parking lot.  The officer claimed that the motorist was asleep in the vehicle and tried to justify further action as a “welfare check” to ensure that the motorist was ok.  However after responding that he was ok, I attacked the officers continued investigation, including: removing the motorist from the vehicle, bringing the motorist to the back of the vehicle, questioned the motorist, conducted standardized field sobriety tests and detained the motorists while other witnesses were questioned.  The Judge ruled that all of those actions exceeded the authority that the officer had at the the time of incident.

As we have discussed extensively in the past, in a case called People v. Debour, New York’s highest Court recognized four different levels of intrusion that police officers may have based on the police officers level of suspicion.  The lowest level, level one, the right to inquire, gives the police officer very limited authority to make inquiries about a person.  Such inquiries may not be pointed or accusatory in nature.  In the case in Rockland County, the Judge correctly ruled that the police officers authority capped at Debour level one there by only giving the officer the very limited right to inquire. Therefore, all of the statements and other evidence derived after that illegal conduct were suppressed, leaving no evidence and therefore no provable case.

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Two New York DWI cases were dismissed in back to back victories, in the same Court on the same day, yesterday. The unusual drama played out in a New York County Criminal Court courtroom, last week as the Judge dismissed DWI charges against two separate defendants. Both dismissals were based upon violations of the defendants’ speedy trial rights, although under two different theories and under two different sections of the New York Criminal Procedure Law. In addition, the two DWI’s were very different. One DWI was a refusal, charged as a “common law” DWI under sec 1192(3) of the New York Vehicle & Traffic Law. The second DWI, was based upon a very high breath test, (.159) and was charged under VTL 1192 (2) and 1192 (3). Both were in very different procedural stages.

The first DWI charge to be dismissed, yesterday, was the DWI based upon a refusal to take a breath test. That dismissal was based upon a violation by the prosecutor of the defendant’s statutory speedy trial right codified under section 30.30 of the New York Criminal Procedure Law and which requires the prosecutors to be ready for trial within 90 days of the arraignment. (How that 90 days is calculated is the subject of other blogs on this site and is beyond the scope of this blog.) However, under the current state of the law (and there is a case up on appeal right now to clarify this issue) when a Driving While Intoxicated under VTL 1192 (2) or (3) is charged on the same docket as the traffic infraction of Driving While Ability Impaired by Alcohol under VTL 1192 (1) and the Driving While Intoxicated is dismissed for violation of statutory speedy trial rights, the Court cannot dismiss the lesser charge of Driving While Ability Impaired. Therefore, while the more serious DWI charge was dismissed, the defendant in that case is still charged with the lesser traffic infraction of DWAI.

The second DWI case to be dismissed yesterday was the case involving the very high breath reading of .159 (almost twice the legal limit of .08). The second case is about six months older than the first case. In this case, the DWI, the more serious charge, was dismissed approximately six months ago for violation of the defendant’s statutory speedy trial rights, leaving only the traffic infraction of Driving While Ability Impaired. After six months of the prosecutors not being ready for trial and making several motions to dismiss the remaining charge for violation of constitutional speedy trial rights (as opposed to statutory speedy trial rights), the Judge dismissed the sole remaining charge of Driving While Ability Impaired.

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In another stunning victory for Westchester County based DWI attorney Peter Tilem, 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.

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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.

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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.

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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.

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