DWI/DWAI Category Archives — Page 4 of 12 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

Fighting a New York DWI Arrest Based on Breath Testing

December 9, 2019 | Peter Howard Tilem

New York DWI Attorneys know that it is one of the worst nightmares for many motorists; the image of those red and blue lights approaching from behind as you are on your way home from dinner or a party. It doesn’t matter if you have had only one drink, or if it has been hours since your last; being pulled over for a New York DWI while having even the slightest bit of alcohol in your system is a terrifying experience.

Part of the reason why drivers fear being pulled over is the uncertainty. Most people do not get behind the wheel when they know they have had too much to drink. Indeed, the majority of DWI arrests are for drivers who thought they were below the legal limit, but that ended up not to be the case. However, what many people do not realize is that there is a lot of subjectivity that goes into a New York DWI arrest.

First is the issue of whether a police officer has the legal ability to stop a car and administer a breath test. Police officers need to have a justifiable reason to pull a vehicle over. Once a car pulls over, a motorist can only be asked to take a breath test if police have reasonable suspicion to believe that they were driving under the influence. If the police ask for a breath test and a driver refuses, then they are subject to administrative penalties, including a minimum one-year license revocation for the first time and a minimum eighteen-month revocation for subsequent refusals. In addition, a police officer may ask a motorist to take a portable breath test on the side of the road. While the results of such a test would not be admissible at a DWI trial, the results may lead a police officer to request a chemical test at the station and refusal to take the portable test is a traffic infraction punishable by 2 points on your license.

New York Court Allows Admission of Defendant’s “Blurt Out” Statement

October 28, 2019 | Tilem & Associates

Under the Fifth Amendment to the United States Constitution, citizens have a right to be free from self-incrimination. The extent of this right, including in what situations it applies, has long been disputed. Currently, courts consider the Fifth Amendment to attach when police engage in the custodial interrogation of a suspect.

Determining when police conduct amounts to custodial interrogation involves a two-prong inquiry. First, courts consider whether the suspect is in custody, or its functional equivalent. Proving a suspect is in custody requires courts use an objective approach, asking whether a suspect reasonably believed they were free to leave. If so, the suspect was not in custody.

A suspect’s Fifth Amendment rights will not attach merely because they are in custody; police must also question or interrogate the suspect. For example, the police may question a suspect about their involvement in a crime. Courts have held that an officer’s conduct that falls short of direct questioning may still trigger interrogation. Thus, any actions taken by an officer reasonably expected to elicit a response from the suspect may count as an interrogation. However, when a statement is spontaneously made, it will not likely be suppressed. A recent case illustrates this concept as it pertained to a “blurted out” confession after a traffic stop. While the suspect was unquestionably in custody at the time she made her statement, it was made with no prodding, encouragement, or questioning from the police.

SCOTUS Issues Case Discussing Police Officers’ Ability to Take the Blood of Unconscious New York Motorists

September 8, 2019 | Peter Howard Tilem

The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures. Courts have long held that to be considered “reasonable”, a search must be supported by the issuance of a valid search warrant. To obtain a warrant, police must fill out an affidavit explaining the basis for their belief that the search is necessary, and present the affidavit to a magistrate, who makes the legal determination if the warrant is justified. Recently, the U.S Supreme Court issued an opinion in a case that may impact when police officers are permitted to take blood when they suspect someone is violating New York DUI laws.

While a warrant is necessary for most searches, there are a number of exceptions to the search warrant requirement. These include:

The plain view doctrine;

U.S. Supreme Court Hears Case that May Have a Major Impact on New York DUI Cases

May 20, 2019 | Tilem & Associates

Under New York DWI law, merely by driving a car a motorist is presumed to have agreed to take a chemical test when requested by a police officer who suspects that the driver is under the influence of drugs or alcohol. This law, called an implied consent statute, is in effect in many states.

Recently, the United States Supreme Court heard the case Mitchell v. Wisconsin that raises a previously undecided issue regarding implied consent laws. Specifically, the case required the Court to determine whether “a statute that authorizes a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement?”

The case arose when the defendant was arrested on suspicion of driving while intoxicated. Evidently, on the way to the police station, the defendant became lethargic, and the arresting officers took the defendant to the hospital. One of the officers accompanying the defendant read him a form explaining the state’s implied consent law; however, the defendant was so incapacitated that he was unable to indicate to the officers that he understood the warnings. The defendant did not either specifically consent or refuse. However, at the hospital, police officers requested that hospital workers take the defendant’s blood. It was later determined that the defendant’s blood-alcohol content was .222, which was well over the legal limit of .08.

New York Court Determines Officer Lacked Reasonable Suspicion to Stop Motorist, Suppressing Breath-Alcohol Test Results

November 27, 2018 | Tilem & Associates

Recently, a New York court issued a written opinion in a New York DWI case granting the defendant’s motion to suppress the results of the field sobriety tests administered by the arresting officer. The court also granted the defendant’s motion to suppress the results of the chemical testing that was performed on the defendant’s breath.

The Facts of the Case

According to the court’s opinion, the defendant was pulled over by a police officer after the officer believed he had witnessed a traffic violation. Evidently, the officer was about 300 feet behind the defendant’s vehicle with another car between them when the officer saw the defendant’s car swerve within its lane. The officer testified that the swerving lasted for a few seconds. At one point, the defendant’s car briefly crossed the fog line and then returned to its lane.

The officer explained that after he pulled the defendant’s vehicle over, he noticed that the defendant smelled of alcohol. A field sobriety test was administered, and the defendant was arrested and taken to the station for a breath-alcohol test. The defendant was later charged with two counts of DUI and filed a motion to suppress the field sobriety and chemical test results.

Court Discusses What Discovery Is Mandatory in New York DWI/DUI Cases

September 24, 2018 | Tilem & Associates

New York DWI lawyers must understand the science as well as the law. Under long-standing U.S. Supreme Court case law, the prosecution must disclose all evidence that is material to guilt or innocence to the defense. This means that in a New York DWI/DUI case, the prosecution has an obligation to hand over not just the evidence that it plans to use to establish that the defendant is guilty beyond a reasonable doubt, but also evidence that would tend to show that the defendant did not commit the crimes charged.

In a recent New York DUI case, the court considered the extent of the discovery that must be provided to a defendant facing charges of operating a motor vehicle while intoxicated.

The Facts of the Case

The defendant was pulled over while traveling 81 miles per hour in a 50-mile-per-hour zone. Upon pulling the defendant over, the officer claimed the defendant had glassy eyes, slurred speech, and an odor of alcohol on his breath. When asked, the defendant told the officer that he had consumed a single drink.

Court Grants Defendant’s Motion to Suppress Following a Traffic Stop for Tinted Windows

August 7, 2018 | Tilem & Associates

In the past, we have written several blogs about the importance of suppression in criminal cases in general and specifically with DWI cases. Recently, a court granted a defendant’s motion to suppress in a New York DUI case that was initiated by police officers pulling the defendant over for having tinted windows. The court granted the motion based on a total lack of testimony regarding the officers’ observations of the degree of tint on the defendant’s windows. The court noted that excessive tint is a valid basis for a New York traffic stop. However, here the prosecution failed to elicit evidence that the tint on the defendant’s windows was greater than that which was legally permissible.

The Facts of the Case

The defendant was pulled over by an off-duty police officer based on the vehicle’s tinted windows. The off-duty officer testified that he instructed the defendant to pull over and, through his open window, could smell the odor of alcohol and could see that the defendant’s eyes were watery and bloodshot. The officer also testified that he based these conclusions on his twelve years as a New York City police officer. The officer explained that the only reason he pulled the defendant over was that he noticed “tinted windows.”

The off-duty officer called in back-up, who arrived a short time later. The back-up officer was less experienced than the off-duty officer, but testified to having made between 12-15 DUI arrests in his 15 months as a New York City police officer. The officer also noted that the defendant smelled of alcohol.

New York Court Grants Defendant’s Motion in DUI Stop Based on Lack of Probable Cause

July 28, 2018 | Tilem & Associates

Late last month, a state appellate court issued a written opinion in a New York DUI case requiring the court to determine if the police officer that stopped the defendant possessed probable cause to do so. Ultimately, the court concluded that the police officer did not have probable cause to stop the defendant’s vehicle for a traffic stop after hearing his tires squeal as he pulled away from an intersection. Thus, the court held that the defendant’s motion to suppress should be granted.

The Facts of the Case

A police officer was on patrol around 2:30 in the morning. The area bars had just closed, and there were a number of pedestrians in the area. While waiting at an intersection, the police officer noticed that as the light turned green, the tires on the defendant’s vehicle squealed as he pulled away from an intersection at a quick pace.

The police officer decided to pull over the defendant based on his screeching tires and rate of acceleration. At the officer’s request, the defendant provided his driver’s license and explained that he was on his way home from work. He told the officer that he did not know why he was pulled over, and the officer informed him of the basis for the traffic stop.

New York Court Excludes Breath-Test Results from DUI Trial Based on Police Officer’s Incorrect Warning

May 22, 2018 | Tilem & Associates

New York DWI lawyers have been following a landmark ruling issued earlier this month, when a state appellate court issued a written opinion in a New York DUI case which determined whether the lower courts properly excluded the results of a breath test indicating that the defendant’s blood-alcohol content was above the legal limit. The court ultimately determined that the warnings provided to the defendant were not correct, and thus the court could not say that he voluntarily consented to the test. This was a critical decision from New York’s highest Court, the Court of Appeals, which interpreted the extent of New York’s “two hour rule” for chemical tests in DWI cases.

The Facts of the Case

The defendant was pulled over and arrested on various charges, including driving under the influence of alcohol. About two hours after his arrest, a police officer asked the defendant if he would consent to a breath test. The defendant refused the test, and the officer read the defendant refusal warnings.

The refusal warnings provided by the officer stated that the defendant’s license would be suspended or revoked, regardless of whether he was ultimately convicted of driving under the influence. The police officer also explained to the defendant that the fact that he refused the breath test could be used against him at trial. The defendant then agreed to take the test, which indicated that his blood-alcohol level was above the legal limit.

New York Court Discusses “Hardship” Exception to DUI License Suspension Requirement

April 5, 2018 | Tilem & Associates

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.