Articles Posted in DWI/DWAI

Tilem & Campbell managing partner Peter Tilem is certified in Driving Under the Influence Detection and Field Sobriety Testing. He has taken the same training many law enforcement officers have. He has also completed the National Association Criminal Defense Lawyers 2009 DUI Defense Seminar. Mr. Campbell is an experienced New York DWI trial attorney having tried both felony and misdemeanor DWI cases.

Peter Tilem is a former prosecutor who is experienced in not only defending DWI cases but with prosecuting them as well. Having been a former prosecutor who prosecuted thousands of cases, including DWI, Mr. Tilem brings a unique perspective to DWI defense. Together, Mr. Campbell and Mr. Tilem provide you with a competent, aggressive, experienced and knowledgeable defense team.

Generally, people charged with crimes fall into two categories: (1) true criminals; or (2) decent people who happen to commit an offense. The large majority of individuals charged with Driving While Intoxicated (VTL 1192(2) and/or VTL 1192(3)) fall into the second category. In other words, generally, those charged with DWI are otherwise law-abiding, gainfully employed decent members of society who happen to commit the crime of Driving While Intoxicated. Unlike most crimes, Driving While Intoxicated affects all socio-economic classes, all neighborhoods, all races, all ethnicities, all religions, all professions and all cross-sections of society.

Effective Dec 18, 2009, New York became the latest state to require the installation of an ignition interlock device for anyone convicted of a misdemeanor DWI in New York. The requirement applies to convictions in New York for Driving While Intoxicated or Driving While Impaired by Drugs and Alcohol. The legislation was first reported https://www.newyorkcriminalattorneyblog.com/2009/05/new_york_may_soon_require_igni_1.html last May and is now effective.

The motorist will bear the cost of the installation and rental of the interlock device. Rental can cost about $50per month. Installation can run up to $200 or more depending on the model of the interlock unit and the type or car you drive. Besides the cost, motorists must keep in mind the embarrassment factor. The motorist will not only be required to blow into the device to start the car but also at random times while driving. The unit will be obvious to anyone in the car.

Anyone charged with a DWI or a related offense in New York should speak to an experienced criminal lawyer who specifically handles Driving While Intoxicated cases. The consequences of a DWI conviction in New York have become increasingly harsh with the possibility of jail, huge fines and surcharges, insurance consequences, the possibility of probation, loss of driving privileges and now the requirement of the ignition interlock system.

Previously I discussed New York Court of Appeal’s cases which held that the police do not have to read a DWI suspect his or her rights before requesting that they perform Field Sobriety Tests because such tests are not testimonial or communicative. People v. Hager, 69 N.Y.2d 141, 512 N.Y.S.2d 794 (1987); People v. Berg, 92 N.Y.2d 701, 685 N.Y.S.2d 906 (1999).
But where the officer requests the suspect to recite the alphabet or perform a finger count test, those responses are verbal and therefore, at the very least communicative. However, the Third Department has held that an officer need not read a suspect his or her Miranda Warnings prior to requesting that the suspect recite the alphabet or perform the finger count test because such tests are not communicative or testimonial in that they don’t reveal the person’s subjective knowledge or thought processes. People v. Hasenflue, 252 A.D.2d 829, 675 N.Y.S.2d 464 (3rd Dept. 1998). The Court of Appeals has reached the same conclusion regarding the alphabet and finger count tests. People v. Berg, 92 N.Y.2d 701, 685 N.Y.S.2d 906 (1999)(these tests are not testimonial or communicative in that they do not require a person to reveal knowledge of facts relating to the offense).
For information regarding Driving While Intoxicated in New York or to schedule a free consultation, please call Tilem & Campbell toll free at 1-888-DWI-COUNSEL or visit us on the web at www.888DWICOUNSEL.COM.

Many times those charged with a New York Driving While Intoxicated charge will complain that they never were read their rights. When one must be read their “rights” is beyond the scope of this blog. However, for purposes of Field Sobriety Tests, the issue addressed in this blog is whether one must be read their “rights”, or what are commonly known as “Miranda Warnings”, prior to being asked to perform Field Sobriety Tests.

The answer is no. In People v. Hager, the New York Court of Appeals held that the police do not have to give a DWI suspect his or her Miranda Warnings prior to the administration of Field Sobriety Tests. 69 N.Y.2d 141, 512 N.Y.S.2d 794 (1987). In rendering its decision, the Court noted that the privilege against self incrimination prevents the state from compelling a person to provide testimonial or communicative evidence. In 1999, the Court of Appeals reaffirmed this holding in People v. Berg 92 N.Y.2d 701, 685 N.Y.S.2d 906 (1999) again holding that Miranda warnings are not required to allow Field Sobriety Tests into evidence.

So therefore, the police do not have to inform a motorist of his or her right to refuse to perform Field Sobriety Tests (People v. Sheridan, 192 A.D.2d 1057, 596 N.Y.S.2d 245 (4th Dept. 1993)) nor do they have to read them their Miranda Warnings prior to requesting they perform the tests.