DWI/DWAI Category Archives — Page 7 of 11 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

DOES YOUR DRIVING WHILE INTOXICATED CASE INVOLVE SERIOUS PHYSICAL INJURY – VEHICULAR ASSAULT IN THE SECOND DEGREE [PL 120.03] – PART 1

July 18, 2010 | Tilem & Associates

If you cause serious physical injury to another person in New York while Driving While Intoxicated (VTL 1192(2), (3)) or Driving While Ability Impaired by Drugs (VTL 1192(4)), in addition to DWI charges, you may also face the more serious charge of Vehicular Assault in the Second Degree (Penal Law 120.03(1)). Vehicular Assault in the Second Degree is a Class E Felony for which you could be sentenced for up to four years in state prison.

For a driver to be guilty on Vehicular Assault in the Second Degree, the prosecution must prove not only that the driver was intoxicated by alcohol or impaired by the use of a drug or the combination of alcohol and any drug or drugs, but also that the intoxication and/or impairment was the cause of the serious physical injury to another. Of course, the prosecution must also prove a serious physical injury as well. (Penal Law 120.03(1)).

However, if a driver causes a serious physical injury to another while operating a vehicle while intoxicated or impaired by the use of drugs or the combination of drugs and alcohol, the law creates a rebuttable presumption that that the driver operated the vehicle in a manner that caused the serious physical injury to another. In other words, if you are Driving While Intoxicated or impaired by drugs and someone suffers a serious physical injury it is presumed that the serious physical injury was caused by how you drove the vehicle.

CHARGED WITH DRIVING WHILE INTOXICATED IN NEW YORK? NOW IS NOT THE TIME TO CALL YOUR “FAMILY” ATTORNEY. WHEN CHARGED WITH DWI IN NEW YORK, YOU NEED A LAWYWER EXPERIENCED WITH DWI DEFENSE

July 7, 2010 | Tilem & Associates

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.

TILEM & CAMPBELL SCORES ANOTHER TRIAL WIN IN WESTCHESTER DWI CASE

May 2, 2010 | Tilem & Associates

Tilem & Campbell managing partner Peter Tilem scored his fourth straight DWI trial victory this week when the Cortlandt Justice Court in Westchester County New York, acquitted his client of all charges which included DWI (VTL 1192(3), Aggravated Unlicensed Operation (VTL 511) and Speeding (VTL 1180). The defendant was facing a year in jail.

While the arresting officer testified to signs of the defendant’s intoxication, Mr. Campbell focused the defense on signs of the defendant’s sobriety and the defendant’s flawless operation of his vehicle. For example, on cross-examination, the arresting officer admitted that he followed the defendant for several miles and that there was nothing about how the defendant drove the vehicle that indicated he was intoxicated; that the defendant maintained his lane at all times; that he did not hit anything or drive erratically; that he safely pulled his vehicle to the shoulder and came to a safe stop. The officer also admitted that the defendant complied with all orders, produced his license, registration and insurance card without any problems and that he exited his vehicle with no problems. The only traffic violation the officer claimed to have observed was speeding.

The Court found that there was reasonable doubt as to whether the defendant was actually intoxicated. Further, the Court found that the defendant had no knowledge that his license was suspended. Finally, the Court found the defendant not guilty of the speeding charge because the arresting officer could not recall if there was a posted speed limit sign at the time he stopped the defendant.

IGNITION INTERLOCK BECOMES MANDATORY UPON CONVICTION FOR DWI IN NEW YORK

January 18, 2010 | Jasmine Hernandez

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.

TILEM & CAMPBELL WINS ANOTHER DWI TRIAL

January 12, 2010 | Jasmine Hernandez

Westchester DWI defense firm, Tilem & Campbell won another DWI trial last week when Mount Pleasant Judge Nicholas Masselli issued a decision finding that the client who was pulled over on the side of the highway was not “operating” the vehicle and therefore could not be convicted of Driving While Intoxicated. Judge Masselli also dismissed another charge of Parking on the Pavement and issued an order sealing the record.

The case arose after the client was found sleeping behind the wheel of a running vehicle that was sitting on the side of the road by a New York State Trooper. The Trooper testified that he smelled the strong odor of an alcoholic beverage on the driver’s breath and that the driver failed a horizontal gaze nystagmus test that was performed on the side of the road. The Trooper testified that the driver failed other field sobriety tests and refused a breath test that he was offered at the police station.

Managing partner Peter Tilem tried the case on behalf of the firm and this victory makes three DWI wins in a row for Mr. Campbell. The defense focused on the troopers errors in administering and scoring the field sobriety tests and the lack of the intent to operate the vehicle.

NEW YORK DRIVING WHILE INTOXICATED: OFFICER DOES NOT HAVE TO READ MOTORIST MIRANDA WARNINGS PRIOR TO THE ADMINISTRATION OF ALPHABET RECITATION TEST OR THE FINGER COUNTING TEST

December 29, 2009 | Tilem & Associates

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.

NEW YORK DRIVING WHILE INTOXICATED: OFFICER DOES NOT HAVE TO READ MOTORIST HIS OR HER MIRANDA RIGHTS PRIOR TO THE ADMINISTRATION OF FIELD SOBRIETY TESTS

December 26, 2009 | Tilem & Associates

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.

TILEM & CAMPBELL WISHES ALL OUR CLIENTS< BLOG READERS AND FRIENDS A HAPPY AND HEALTHY HOLIDAY SEASON

December 23, 2009 | Tilem & Associates

New York criminal law firm Tilem & Campbell would like to take a moment to thank our clients, blog readers and friends for a great year and wish everyone a very healthy and happy holiday season.

During this season a couple of things bear repeating.

Drinking and Driving is a serious and dangerous crime. Don’t drink and drive.

NEW YORK DRIVING WHILE INTOXICATED: MOTORIST MAY REFUSE TO PERFORM FIELD SOBRIETY TESTS

December 22, 2009 | Tilem & Associates

Field Sobriety Tests (FSTs) are designed to test one’s physical abilities and well as their ability to divide their attention between multiple tasks or instructions. They are utilized by officers in making a decision to arrest a motorist for Driving While Intoxicated. In order to arrest a motorist for DWI, New York law requires that the police officer have probable cause to believe that the motorist had been driving in an intoxicated condition. FSTs are designed to aid the police officer in deciding whether he has probable cause to believe that the person is intoxicated. Most of us have seen the “walk and turn” test, the “one-leg-stand” test or the horizontal gaze nystagmus test (the “follow my finger” test) on videos, in the movies or if you have been suspected of driving while intoxicated and have been asked to perform them by the officer.

The question many ask is, “must I perform these tests?” It’s a very legitimate question. Should one attempt the Walk-and-Turn and One-Leg-Stand tests on the side of highway with cars passing at 55 mph in the middle of the night? Keep in mind; these tests are difficult for sober people to successfully perform. (That’s why judges will almost never allow a defense request that the officer show the court exactly how that officer demonstrated the test for the motorist – as the officer is required to do).

A motorist does have the right to refuse to perform Field Sobriety Tests however; the police have no obligation to inform the motorist of his or her right to refuse to perform the tests. People v. Sheridan, 192 A.D.2d 1057, 596 N.Y.S.2d 245 (4th Dept. 1993); see also People v. Capraella, 165 Misc.2d 639, 629 N.Y.S.2d 965 (N.Y.City Crim.Ct.,1995)(holding that the police have no obligation to inform motorist that they can refuse to perform field sobriety tests). However, one’s refusal to perform field sobriety tests is admissible at trial. People v. Berg

TILEM & CAMPBELL TO LAUNCH DOCTOR SUMMONS HOLIDAY AD CAMPAIGN

December 17, 2009 | Jasmine Hernandez

New York criminal defense law firm Tilem & Campbell will launch a holiday season ad campaign directed toward those caught Driving While Intoxicated or violating other New York traffic laws. The campaign will advertise the Doctor Summons trade name which will ask potential clients to contact Tilem & Campbell through its 877-DR-SUMMONS toll free number and through its DRSUMMONS.COM website. The ad campaign coincides with the holiday season, during which the firm sees an increase in DWI, Aggravated Unlicensed Operation of a Vehicle, Speeding and other moving violations.

The ad campaign is designed to let motorists know that they can fight these types of charges and that in many cases they can fight traffic violations without the necessity of going to Court.

The Dr Summons name has been used by law firm Tilem & Campbell, for several years to give motorists an easy to remember toll free number and website in case they find themselves charged with a traffic violation or DWI. Tilem & Campbell has successfully handled thousands of traffic violation in New York State.