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Articles Posted in DWI/DWAI

Being arrested, charged, and convicted of a New York DWI offense can carry significant consequences for motorists. Indeed, as discussed below, even being charged with DWI can result in the immediate suspension of your license.  These consequences can include fines, mandatory participation in the New York Drunk Driver Program, probation, and even jail time. In addition, a DWI conviction can also result in a license suspension or revocation.

Under New York Vehicle and Traffic Law section 1193(2)(e)(7), under certain circumstances, a court can suspend the license of a person charged with DUI while the case is still pending. However, to comply with constitutional requirements, the statute allows for judges to make hardship exceptions. A recent case discusses how courts determine if someone charged with a New York DWI offense meets the requirements of a hardship exception.

The Facts of the Case

The defendant was pulled over after making an illegal left turn. When the officer approached the defendant’s car, he claimed to have noticed signs of intoxication. The officer administered a breath test, which indicated that the defendant’s blood-alcohol content was .087. The legal limit in New York is .08.

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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:

Refusing to take a chemical test in New York can come with very serious consequences.  For example, a motorist who refuses a properly requested breath test can have his or her license revoked for a minimum period of one year even if they beat the DWI case.  If a person has prior alcohol related incidents, the period of revocation can be much longer, even life.  Fortunately, before revoking a license because of an alleged refusal, the motorist is entitled to some level of due process.  In New York this requires that the Department of Motor Vehicles hold a hearing to determine whether the motorists’ license will be revoked.  In New York the criminal case, the DWI, and the refusal follow two different tracks.  The DWI is handled in Court while the refusal goes to a hearing before an administrative law judge that works for DMV.  In addition, the burden of proof is lower in refusal hearings.

Last week, Tilem & Associates Partner Peter Tilem conducted  a “refusal hearing” in the New York and beat the refusal. That means that the police did not sustain their burden of proving the elements necessary to revoke the license and the matter was dismissed by the DMV administrative law judge. This particular motorist was charged with both DWI and had the refusal.  He had two prior convictions for Driving While Ability Impaired by Alcohol (DWAI) and either a conviction in the DWI case (including a conviction for a reduced DWAI) or a finding that he refused could have resulted in a lifetime revocation of his New York driving privileges. Thankfully, after an almost one hour cross-examination of the police officer the DMV judge dismissed the refusal.

At a New York DWI Refusal hearing the police must establish 4 separate elements in order to win the refusal hearing.

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.

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.

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.

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.

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.

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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